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We are starting to see reports of Tribunal cases for unfair dismissal based on the furlough scheme.  Of course, the furlough scheme was closed on 30th September 2021, but we may see further cases that have already been issued or that are issued within the next few months.  I’m sure we will, and they’re very relevant to all businesses.

Tribunal Case 2021

In this case, the absence of a reasonable explanation for not furloughing made the dismissal unfair.   The Tribunal went further, holding that the employers had a duty to actively consider furlough when making someone redundant during the availability of the scheme.

The claimant was a care assistant with just over two years’ employment at the date of dismissal.  She was employed as a live-in carer for an elderly woman who then moved into a care home in February 2020.  This meant that the claimant’s role was effectively redundant.

In May 2020 the claimant asked to be furloughed, but this was refused.  The respondent’s reason for refusing this request was that there was no work for her.  She was then dismissed for redundancy in July 2020.

The judge held the dismissal to be unfair, saying “I am of the view that in July 2020 a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy.”

The judge also held that at the time of dismissal, the respondent had no way of knowing if the lack of work was going to change.  The respondent didn’t consider whether to furlough the claimant for a time to see if any other work became available.

Flaw in the rationale

Those of you who have followed the furlough scheme in detail might spot this.  In July 2020 it was not possible for the respondent to furlough the claimant for the first time.  An extension to the furlough scheme announced on 29 May 2020 made it unlawful to furlough someone from that date if they hadn’t previously been furloughed.  However, this claimant had requested furlough before this extension was announced, and the judge must have factored this in. Since then, the rules have changed to allow employees to be furloughed again for the first time, so the judge’s approach remains valid to the end of the scheme.

Implications

Those of you who work in areas of employment law will also spot that this is only a Tribunal case and not an appeal case.

This means that it doesn’t set a precedent – not yet at least.  However, it is an indicator of how very careful an employer has to be when considering all aspects.  The test is whether the course of action taken is within the band of reasonable responses.  The employer should be able to show that they are acting in a reasonable and fair way – if you have any doubts over this we would be happy to advise you.

 

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