The claimant started working for the respondent in August 2017 as an Assistant Quantity Surveyor.  She remained in that position until she was dismissed by reason of redundancy in December 2020.  The respondent was recognised by the Tribunal as a small employer with 6 employees at the time including a director, senior quantity surveyor and another assistant quantity surveyor.  

Following the effect of the Coronavirus lockdown in March 2020, the respondent suffered a severe downturn in work.   It utilised the furlough scheme with employees, including the claimant, being furloughed.  The furloughed employees were paid 100% of their pay. In May 2020 this was reviewed and the two assistant quantity surveyors were informed that their position could be potentially redundant. This was on the basis that the respondent had gone from having eight clients to having two. The claimant (and the other assistant quantity surveyor) were offered settlement agreements to end their employment.  However, the Government announced that the furlough scheme would be extended and the claimant was informed her furlough would continue. On 22nd October the claimant was offered another settlement agreement. The claimant did not accept this and sought three weeks to consider this throughout November.   The line manager expressed concern at this considering that the claimant had been on holiday in the United States and Mexico.  There were other pressing circumstances though such as the claimant’s father dying and that she was pregnant.  She did have to go to Colombia but this was not a holiday. 

On 5th November 2020, the claimant was provided notice of redundancy confirmation with one months’ notice. The other assistant quantity surveyor was not made redundant and he was provided work with the marketing team.   The move to marketing was never put forward to the claimant.   The redeployment of the colleague was on the basis that he had requested what other work would be available.  This contrasted with the claimant’s position where she sought to remain on furlough instead of being made redundant.  The claimant wrote an email suggesting that she should remain on furlough as an alternative to redundancy. The reply noted that the furlough scheme had changed and it would affect the respondent such as paying national insurance and pension contributions.  As a result, the respondent felt that it would not be sustainable to keep the claimant on furlough. The claimant brought a claim for unfair dismissal as a result. 

The Tribunal considered the situation at the time and the size of the respondent. It was clear that there was a severe downturn in work and as a small employer it would be difficult to keep employees on furlough considering that there was an expense to it.  The Tribunal held that the redundancy situation was genuine and that there was no inconsistent treatment between the claimant and her colleague who had moved to marketing. It required a different skill set and one which the claimant did not possess. Accordingly, the claimant’s case was dismissed.  

Practical Lessons

The implementation of the furlough scheme was designed to mitigate against the risk that thousands of employees would be made redundant. As, it seems, we are getting towards the end of the pandemic the furlough scheme seems to have been successful in that regard.  However, there were still situations in which roles had to be made redundant. The question arising is the extent to which the furlough scheme should have continued to be utilised by employers. In this case, there is a clear focus on the nature of the respondent as a small employer and its downturn in work. These factors mean that the redundancy situation was regarded as genuine and a fair decision was reached.  
https://www.gov.uk/employment-tribunal-decisions/ms-l-rodriguez-v-building-perspectives-ltd-3200885-slash-2021