In 2020, Mrs B Mhindurwa was made redundant from her role as a live-in carer for Loving Angels Care after the person she cared for went into hospital and then moved to a care home.
The care home said it did not have another client for her to care for because of the Coronavirus pandemic. The employer denied Mhindurwa’s request to be furloughed instead, after which she brought the issue to tribunal.
The tribunal found that her dismissal was unfair because Loving Angels Care did not consider the possibility of putting her on furlough until it found out whether the situation would improve and if her role would become useful again.
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The furlough scheme ran from 1 March 2020 and ended on 30 September 2021, providing grants to employers so they could retain employees and continue to pay them during lockdown.
The scheme, which cost £70 billion, furloughed 11.7 million employee jobs.
Keely Rushmore, employment partner at Keystone Law said the furlough scheme threw up new legal challenges for many employers.
Speaking to HR magazine, she said: “During the Covid-19 pandemic many HR and employment law professionals deliberated over whether furlough should be considered or used as an alternative to redundancy.
“Given furlough was a new concept and there was no judicial guidance available, this was not always an easy question to answer.”
Rushmore said the tribunal confirmed that by not considering furlough, Loving Angels Care acted unreasonably as Mhindurwa’s role could become useful again after the pandemic.
It may not set a precedent for other, similar furlough cases though.
She added: “This is an interesting decision but, as with all employment tribunal decisions, it is fact specific.
“It is interesting to note that, in this case, the amount of alternative work reduced significantly because of Covid, and the employer did not know how long the reduction in work was likely to last.
“The decision may well have been different if the lack of alternative work had not been directly linked to Covid, or if the employer had concluded that there was no possibility of the employee’s role being needed in the future, even after the pandemic has passed.”
