Hello and welcome back to our case of the week. Our last update looked at a COVID whistleblower that was awarded over £3 million pounds in her unfair dismissal claim!
In this week’s update we are looking at a live-in carer who was made redundant during the pandemic, along with the unfair dismissal claim they brought.
The Claimant, Mrs Mhindurwa, was a live-in carer. In the early onset of the pandemic her client was moved into hospital, leaving few other clients in need of care the Respondent, Lovingangels Care Ltd, usually provided. The Claimant was dismissed as redundant.
The employment tribunal decided that a reasonable employer in all the circumstances would have considered placing their workers on the furlough scheme to avoid a redundancy dismissal.
The Respondent failed to argue on this point, stating only that they did not have any work available given the Claimant’s location. The second prong to this argument was that the Respondent had failed to conduct a proper appeal meeting which should have considered furlough as a reasonable alternative.
On these grounds the dismissal was deemed unfair.
On appeal, the EAT considered three grounds of appeal:
1) the employment judge had erred in law by stating that ‘the whole purpose of JRS, known as furlough, is to avoid the layoff of employees because of covid.’ While placing emphasis on the failure to consider placing the claimant on furlough, rather than requiring the furlough scheme to be used, the first ground of appeal was dismissed.
2) that when the dismissal decision was made on 30 June 2020, the furlough scheme was closed to new entrants. The EAT dismissed this ground because this point had not been raised at first instance and in any event the Claimant had requested to be placed on furlough prior to this date when the scheme was still open.
3) the employment judge ‘substituted his own view by saying that the appellant should have considered furlough for a period of time.’ This argument is founded in employment case law which pulls wording directly from the case of Brent London Borough Council v Fuller  and Newbound v Thames Water Utilities Ltd , which states that employment tribunals cannot substitute their view for those of the employer when deciding the fairness of a dismissal. Finding that the judge was entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer, the final ground was dismissed.
It is always important to ensure that your case encompasses all the points you are trying to make when you first bring your case before the tribunal. Should you or someone you know experience any issues with the above, please contact a member of our team who will be able to assist you.