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The Employment Appeal Tribunal (EAT) has confirmed that an employee who was made redundant in the early months of the COVID-19 pandemic was unfairly dismissed because her employer had failed to consider furlough as an alternative to redundancy.
31 May 2023
Case Study
The claimant was employed as a care assistant providing round-the-clock live-in care for an elderly woman until she moved into a care home in February 2020.
In May 2020, the respondent wrote to the claimant to explain that due to the Government restrictions in place to prevent the spread of COVID-19, she could not be offered any more live-in care work. During a Zoom meeting in June 2020, the claimant was offered domiciliary care roles, however, unfortunately, due to the travel requirement, these roles were unsuitable for her. In response to this, the claimant asked to be furloughed to which her employer refused.
In July 2020 she was dismissed for redundancy, with the company stating that there was no alternative to redundancy. The claimant appealed the decision, but her redundancy was upheld. The claimant claimed unfair dismissal on the basis that the reason for her dismissal was not redundancy, but because she had raised issues with the respondent about the underpayment of her wages.
Case Study
Despite finding that the claimant had been dismissed for redundancy, which is one of the five potentially fair reasons for dismissal, the Employment Tribunal upheld her unfair dismissal claim, on two counts.
Firstly, the judge held that in July 2020, a reasonable employer would have considered whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy, and secondly, the tribunal found that the appeal had not been carefully considered and the decision had simply been “rubber stamped”.
The employer subsequently appealed the decision to the Employment Appeal Tribunal and the appeal was dismissed.
The EAT upheld the Employment Tribunal’s original decision that the claimant was unfairly dismissed for the reasons discussed above. The EAT also held that determining a claim of unfair dismissal where the dismissal occurred during the pandemic, should be carried out in exactly the same way as for a dismissal in ‘normal’ circumstances, and it was correct for the tribunal to apply the same approach to furlough as it would have applied to any possible alternative to dismissal that an employer might have been expected to have considered.
This case highlights the duty of an employer to consider all alternatives to dismissal that are available at any given time. While there was some initial uncertainty over the furlough scheme (particularly in respect of how long the scheme would remain in place and the treatment of holidays), consideration should still have been given to utilising this as an alternative to making redundancies.
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