Alternatives to Redundancy

Victoria Notman highlights the importance of considering alternatives to redundancy following a recent tribunal case.

Mhindurwa v Lovingangels Care Limited

Many employers were quick to make redundancies at the outset of the Covid-19 pandemic. This case is an indication that any such rash decisions may come back to bite employers through claims for unfair dismissal.

The key facts

Ms Mhindurwa (Ms M) was employed by Lovingangels Care Limited (Lovingangels) as a care assistant from October 2018, providing live-in care for one particular client until their admission to hospital in February 2020.

In May 2020, Lonvingangels wrote to Ms M telling her she was ‘at risk’ of redundancy as they could not offer her any live-in care work due to the Covid-19 restrictions in place at the time. Ms M requested to be placed on the government furlough scheme but Lovingangels refused on the basis that there was no work for her.

The parties met in July 2020 (by way of consultation) to explore any suitable alternative roles prior to dismissal. The only role available was domiciliary care, which Ms M had to refuse due to the distance from her home. She was therefore dismissed by reason of redundancy.

Ms M appealed against the decision however her appeal was instantly rejected.

She subsequently brought a claim for unfair dismissal on the grounds that Lovingangels should have considered placing her on furlough.

Employment Tribunal Decision

It was held that Ms M was in fact dismissed by way of redundancy (which is one of the potential reasons for dismissing someone fairly) and the dismissal was unfair for the following reasons:

• Taking into consideration the general purpose of the furlough scheme at the outset of the Covid-19 pandemic (which was to avoid lay-off of employees by providing employers with financial support), a reasonable employer should have considered placing Ms M on the scheme to avoid making her redundant.
• The appeal process was a sham. It was found to have merely ‘rubberstamped’ the original decision and the individual dealing with the appeal made no enquiries into the original decision to dismiss and merely assumed that the original decision was correct.

Key takeaways for employers

Although this is a furlough related case there are still some lessons for employers:-

Duty to consider alternatives to redundancy – When seeking to dismiss by reason of redundancy, it is imperative to look across the business to see whether there are any suitable alternative roles an employee can perform, especially if they have over two years’ service. They may bring a claim for unfair dismissal if you fail to do so.

This will depend on a variety of factors such as how similar the new job is to the employee’s current job, the terms of the new job, the employee’s skills and abilities and the pay (including benefits), status, hours and location.

Importance of an appeal process – The right to appeal is a key part of any redundancy process and a lack of an ability to appeal or a proper appeal process will increase the chances of a tribunal finding a dismissal to be unfair.

REMINDER: In light of this decision, please also be aware that September 2021 is the last month that the Coronavirus Job Retention Scheme is in place. If you still have employees on furlough, make sure the necessary steps have been taken to facilitate their return next month. This piece is from our Employment newsletter Resource, sign up here.