The claimant was employed as a care assistant from 23rd March 2018.  The claimant raised a grievance in February 2020 relating to the fact that she should have a written statement of particulars, she had not been auto-enrolled into a pension and she had not been provided with a copy of the Employee Handbook.  There was also an alleged issue with underpayment of wages. This led to payments on 9th April 2020 relating to holiday pay and a food allowance. 

The claimant had been employed to provide live-in care for a client, HR. HR was admitted to hospital in February 2020 and then moved from the hospital to a care home.  Therefore, the claimant was no longer required to provide those live-in services.  In May 2020 the respondent wrote to the claimant stating that they were unable to provide the claimant with live-in work. She was informed that there would be a meeting to discuss and her employment may come to an end.  

There were subsequent meetings in June and July culminating in the claimant being dismissed as there was no alternative to redundancy. The claimant appealed the decision to dismiss but this was refused. The claimant claimed for unfair dismissal suggesting that the alternative to redundancy was that she should have been furloughed as the scheme had been brought into effect from March 2020. She also cited that there were jobs being advertised by the respondent when she had been dismissed. The Tribunal found though that there was no live-in work to offer the claimant and the roles that had been advertised were different. On the issue of offering furlough rather than redundancy, the Tribunal stated: 

‘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 respondent in their evidence stated that there was no work and that work had reduced due to Covid-19.  Accordingly, the Tribunal found this to be the type of situation envisaged when the furlough scheme was established.  Accordingly, it was held that the decision to dismiss was unfair and that a reasonable employer would have considered the use or offering of furlough. 

Practical Lessons

This provides a very useful insight as to how the Tribunal will look at whether furlough should have been considered rather than redundancy.  With 2020 leading to a great number of redundancies in NI and GB, this decision may have ramifications for employers. The question will be whether the furlough scheme should have been considered and offered to the employee as an alternative to any redundancy situation. It must be noted that this reasoning may lead to unfairness for employers as 2020 gave great uncertainty and that many may not have considered offering furlough, as they did not know when it would end and the contributions they may have had to make.  It will be interesting to see if this reasoning is adopted in similar cases that come before the Tribunal.  
https://assets.publishing.service.gov.uk/media/60f025b9e90e0764d0ab7d30/Mrs_B_Mhindurwa_v_Lovingangels_Care_Limited_-_3311636-2020_-_Judgment.pdf