Was the redundancy decision taken too soon or should furlough have been considered or existing furlough arrangements extended for longer?
Wednesday 11th August 2021
These are questions that various employers have wrestled with and indeed may still be considering given that the Coronavirus Job Retention Scheme (CJRS) will end on 30 September 2021.
So far there appear to be only two cases which have considered the inter-relationship of furlough and a decision to dismiss for redundancy in the context of whether such a redundancy decision was unfair.
In the first of these (both first instance Employment Tribunal decisions which are not binding on any other tribunals) Mhindurwa v Lovingangels Care Ltd, it concerned an employee, who was made redundant not long after the furlough scheme had been brought in. The Employment Tribunal found she had been unfairly dismissed because her employer did not consider furloughing her before deciding to dismiss.
In another more recent case, albeit with a different factual background, a different tribunal appears to have gone the other way. In Handley v Tatenhill Aviation Ltd, the employee had been on furlough but was then made redundant and the Employment Tribunal found that even though the employer could have extended the furlough period longer, this did not make the dismissal unfair and of course the tribunal could not substitute its own view and decide the case on the basis of what it would have done: provided an employer’s decision is within the range of reasonable responses open to it, a tribunal won’t interfere with it. [Note: in the case in question the Claimant was found to have been unfairly dismissed for other reasons.]
The learnings from these two first instance decisions about the inter-relationship of furlough and redundancy dismissals are actually quite unsurprising. As with any dismissal for any reason at all, the reasonable employer should always first consider possible alternatives to dismissal and so if an employer hasn’t considered furloughing a member of staff as an alternative to redundancy, a tribunal could decide that the dismissal was unfair. Secondly, the issue of when enough is enough and furlough should be ended in favour of dismissal for redundancy, will always be a matter for the employer alone. So long as the employer’s decision is within the band, or range, of reasonable responses to the situation, then a tribunal will not interfere with that decision.
If you would like to discuss this further, then please contact one of our employment experts below. To view the full August Employment Law Update, click here: