In the case of Mhindurwa v Loving Angels Care Limited, full judgement here, the Judge determined that the dismissal of Mhindurwa was unfair because the employer did not continue to furlough the employee when furlough was available and instead proceeded to a redundancy.
When I read the headline on this ‘Failure to Furlough Makes Dismissal Unfair’, my heart was pounding, OMG, so many questions:
- does this mean many more employees could make similar claims and how can this be so, given the guidance was clear it was employer choice? and
- does this mean the tribunals will backdate and open the floodgates for those that were in this situation but didn’t make a tribunal claim in time to now apply?
Having taken a few deep breaths and read more about the case, I was more reassured. It is certainly a case of interest, but there are some key and very important points to bear in mind, the outcome isn’t as straightforward as it first sounds, and I would be interested to see if the employer appeals.
Firstly, the tribunal accepted that Mhindurwa was redundant and so the employer must have met the test for that.
Secondly, the furlough scheme was not strictly an option open to the employer in this case because of the eligibility criteria and milestone dates. When consultation started in July 2020 the employee was ineligible to be furloughed (in accordance with the schemes own rules), which indicated perhaps the tribunal may not have fully understood the rules of the scheme. Although the tribunal caveated their thoughts by saying the employer should have placed the employee on furlough sooner than they did, which would have been within the rules and eligibility criteria, something the employer didn’t think was appropriate at that earlier time.
Thirdly, the tribunal was potentially substituting their own view of how they would have handled the situation, which they aren’t really supposed to do.