Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant, a live-in care assistant, was made redundant in Summer 2020. This occurred after her client had moved into a care facility and due to the pandemic there were no other clients she could live with. At first instance, the Tribunal decided that there was an alternative to redundancy – that being the furlough scheme. As a result, the claimant was successful. The respondent appealed this to the EAT.
Outcome:
The EAT stated at paragraph 1:
‘This appeal raises the question of whether the Coronavirus pandemic required an alteration to the legal analysis to be applied when deciding a claim of unfair dismissal. Put another way, was there a special approach that the [Tribunal] should have adopted to dismissals occurring in the context of the Coronavirus pandemic, in respect of which the EAT should provide guidance. Our simple answer to these questions is no.’
The issue though, within the normal confines of the law, is whether the employer had taken reasonable steps to consider alternatives to redundancy. The respondent argued that the Tribunal Judge had ‘substituted its own view’. However, the EAT disagreed with this argument stating that it was appropriate for the Tribunal to state that the respondent had acted unreasonably in failing to properly consider the possibility of furlough as an alternative. This was not to be regarded as something altering the legal framework but rather was part of the general tenets of unfair dismissal law. It was held that the Tribunal was entitled to apply the same approach to furlough as they would to any possible alternative to dismissal that the employer might, in appropriate circumstances, be expected to consider if acting reasonably. As a result, the appeal was dismissed.
Practical Guidance for Employers:
The EAT makes it abundantly clear that the requirement to consider furlough as an alternative to redundancy was not some adjustment to the legal framework vis-à-vis unfair dismissal but rather was just a normal part of the general law. There is that requirement to look at alternatives and when furlough was available that fell into the category. Therefore, as a result of failing to properly consider it there was a failure to act reasonably.
We previously covered this case at Employment Tribunal level and the Review can be found here:
https://www.legal-island.com/articles/uk/case-law/2021/august/mhindurwa-v-lovingangels-care-ltd-2021/
Link to the full EAT judgment:
https://www.gov.uk/employment-appeal-tribunal-decisions/lovingangels-care-ltd-v-mrs-b-mhindurwa-2023-eat-65
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