It seems that furlough is already making its way into employment tribunals with two notable cases making the headlines.

The first case, Mhindurwa v Longingangels Care, involves a care assistant who provided live-in care for an elderly woman.

When the patient moved into a care home in February 2020, the claimant’s job was effectively redundant. In May 2020 she asked to be furloughed but this was refused by her employer on the basis that there was no work for her. Instead, she was made redundant in July of that year.

The tribunal accepted that there was a genuine redundancy situation, however, the purpose of furlough was to avoid redundancies and a reasonable employer, therefore, would have considered furlough. Although there was no work for the claimant at the time of the dismissal, this position could have changed with work becoming available.

It is worth noting that the employer could not explain why furlough was not considered for Mrs Mhindurwa which led to the dismissal being deemed procedurally unfair by the tribunal.

The second case, Handley v Tatenhill Aviation Ltd, involves a flying instructor who was placed on furlough in April 2020. His employer, the operator of a small, private airfield, placed Mr Handley on furlough under the agreement that it would be for a period of three weeks or until it was possible to return to work as normal.

The employee was subsequently made redundant in August 2020 leading to a claim for unfair dismissal on the basis that the terms of the furlough agreement prevented redundancy.

However, on this occasion, the employment tribunal disagreed. It found that the employer needed to cut costs regardless of furlough and that it was not unfair for them to have chosen redundancy over furlough.

These early cases seem to suggest that it is not necessarily unfair to dismiss an employee while the furlough scheme is in place, but there is certainly an expectation that employers should have given consideration to furlough before jumping into redundancy.

If you are an employer who needs legal advice about the furlough scheme or redundancies, please do get in touch to arrange an appointment or check out Beswicks HR – unlimited phone and email advice from an employment solicitor for a low monthly fee.

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