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Kerry Eastman

HR Advisor - Uckfield

24th August 2021

Unfair Dismissal: Alternatives to Redundancy

Unfair Dismissal: Alternatives to Redundancy

Background

Mrs Mhindurwa, a care assistant, had been employed by Loving Angels Care, a company providing live-in care to vulnerable people, since October 2018. On 8 February 2020, the individual for whom Mrs Mhindurwa provided live-in care was admitted to hospital and subsequently moved into a care home, the result being that Mrs Mhindurwa was no longer required to provide live-in care to them. This decision was communicated to Mrs Mhindurwa by Loving Angels Care on 18 May 2020.

In June 2020, Mrs Mhindurwa attended a Zoom meeting with Loving Angels Care where she was informed that her role was at risk of redundancy because they could no longer offer her live-in care work. She was advised that, while domiciliary care work was available, it did not amount to suitable alternative employment as it would require her to travel. During the same meeting, Mrs Mhindurwa asked to be furloughed under the Coronavirus Job Retention Scheme (CJRS). Loving Angels Care declined to furlough Mrs Mhindurwa, their rationale being that there was no live-in care work available.

In July 2020, Loving Angels Care wrote to Mrs Mhindurwa informing her that, as there were no alternatives to redundancy, her role was redundant. Aggrieved by the decision, Mrs Mhindurwa appealed but was unsuccessful.

Employment Tribunal: Decision

Mrs Mhindurwa submitted a claim to the Employment Tribunal (ET), claiming that the reason for her dismissal was not redundancy, but rather as a result of a complaint she had made regarding underpayment of wages. The ET did not agree with Mrs Mhindurwa’s submissions in respect of the reason for her dismissal.

That said, the ET still ruled that Mrs Mhindurwa has been unfairly dismissed because Loving Angels Care had failed to give consideration to the possibility of furlough. The Judge stated that in July 2020, any reasonable employer would have given consideration to furloughing an employee as an alternative to redundancy and that, while Loving Angels Care could not provide suitable alternative employment in July 2020, they could not predict future demand for live-in care and should have considered furlough for a period of time to see if live-in care work became available.

Further, the ET found that Mrs Mhindurwa’s appeal process was incorrectly handled as the appeal chair did not make any enquiries to ascertain whether Mrs Mhindurwa’s reasons for appeal were valid. Rather they simply reiterated the decision to dismiss as made by the chair of the redundancy process.

What does this mean in practice?

Although this is only a first instance decision, it is very significant as regards the fairness of redundancies taking place during the currency of the CJRS. In addition, it reinforces well established principles including the need to consider alternatives to redundancy throughout a redundancy consultation exercise and the need to ensure an appeal chair is independent and does not simply rubber stamp the original decision.

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