Before dismissing an employee, the law requires employers to consider alternatives.
In Lovingangels Care Ltd v Mhindurwa, the EAT held that this basic tenet applied equally to the circumstances of the pandemic. That being so, tribunals did not need to adopt a special approach to a dismissal which occurred during that period.
Basic facts
Ms Mhindurwa worked as a live-in carer for a client who went into hospital on 8 February 2020. In the normal course of events, she would have moved to care for another of the company’s clients, but because of the restrictions imposed by the coronavirus (COVID-19) pandemic, the company did not have any other live-in care work to offer her.
Following the introduction of the Coronavirus Job Retention Scheme (CJRS) in March 2020, Ms Mhindurwa asked to be furloughed. The company refused, however, on the basis that there was no suitable work for her. She was dismissed by reason of redundancy in July 2020 and subsequently lodged tribunal proceedings for unfair dismissal.
Tribunal decision
The tribunal accepted that Ms Mhindurwa had been dismissed by reason of redundancy but held that the dismissal was unfair because a “reasonable employer” would have considered the possibility of putting her on furlough until more live-in care work became available.
Instead, the company had given no thought to furlough as a possible alternative to redundancy, despite the fact that this was exactly the situation for which it was intended. The judge also held that the company had failed to adequately consider furlough at her appeal which it labelled a “rubberstamp exercise”.
The company appealed, arguing that the tribunal judge:
- Was wrong to conclude that the whole purpose of furlough was to avoid laying employees off;
- Had overlooked the fact that the furlough scheme closed to new entrants in June 2020, and;
- Had substituted his own view for that of the company.
EAT decision
Whilst it acknowledged that the circumstances of the pandemic were exceptional, the EAT considered that the law of unfair dismissal was “robust” enough to deal with them. The tribunal had not, therefore, needed to adopt a special approach to a dismissal which occurred during that period.
With regard to ground one of the appeal, the EAT emphasised that the tribunal had not decided that it was unfair to dismiss Ms Mhindurwa because the company had not put her on furlough, but rather because it had not considered the “possibility” of doing so. It had not, therefore, decided that the scheme applied to Ms Mhindurwa, but rather that the company should have considered whether it did. In coming to this conclusion, the employment judge had correctly applied the general tenets of unfair dismissal law by requiring the employer to consider alternatives to dismissal.
As for ground 2, the EAT held that, as the company had not raised the argument about the date when the furlough scheme closed at the tribunal hearing, it could not raise it now. In any event, Ms Mhindurwa had asked to be furloughed well before the CJRS was closed to new entrants.
It also rejected ground three, holding that the tribunal judge had not substituted his own view but had correctly concluded that the company had acted in a way that fell outside the band of reasonable responses. The fact that the company disagreed with that conclusion did not mean that the employment judge had substituted his view for theirs.
Comment
There have been a number of cases since 2020 in which employers have argued the coronavirus pandemic was such an exceptional circumstance that tribunals should apply a different standard when assessing cases. In this instance, the situation of redundancy meant the employer was obliged to consider alternatives to dismissal. The furlough scheme was an example of a potential alternative that the employer should have included within their considerations.