Care worker unfairly dismissed because furlough wasn’t considered during redundancy process

Judge ruled that a ‘reasonable employer’ would have considered furlough for a time to see if any other work became available.

Former care assistant, who was made redundant rather than furloughed at the start of the pandemic, was unfairly dismissed, a tribunal has ruled.

An employment tribunal under Judge Gumbiti-Zimuto found that the decision by Loving Angels Care Limited to dismiss Mrs B Mhindurwa as there was no suitable work was unfair because the company failed to consider whether she could be put on furlough for a time to see if any other work became available.

The tribunal also found there was a failure to give Mhindurwa a proper appeal. However, additional claims about unpaid wages and holiday pay were dismissed.

Mhindurwa was employed at Loving Angels Care from October 2018 to provide live-in care to a vulnerable person until 8 February 2020 – after which the patient was admitted into hospital and then moved to a care home. This meant Mhindurwa was no longer required to provide live-in care.

On 18 May 2020, Loving Angels Care wrote to Mhindurwa to say they could not offer the claimant live-in care work. Then, during a Zoom meeting on 12 June 2020, she was informed that Loving Angels Care could only offer her domiciliary care work but the available positions were unsuitable for Mhindurwa as it would require her to travel too far.

Mhindurwa requested to be furloughed but was told the company said it could not agree to furlough because there was no live-in care work for her. 

Loving Angels Care then wrote to Mhindurwa on 13 July 2020 to inform her that there was no alternative to redundancy and the claimant was given notice of dismissal and received a redundancy package. Mhindurwa appealed the decision but it was unsuccessful.

Mhindurwa then brought the issue to the tribunal, where she claimed the reason for her dismissal was not redundancy, but because she had raised issues with the respondent about the underpayment of her wages.

Mhindurwa also told the tribunal that, although her original patient no longer required live-in care, Loving Angels Care had available work as they allegedly continued to advertise for live-in carers.

However, the tribunal said that Mhindurwa had not been dismissed because of the issues of underpayment, and said Loving Angels Care had been “open about its failings in respect of the payment of the claimant’s wages and explained why this came about”.

The tribunal also did not find it to be the case that Loving Angels Care had available work and said that the offer of domiciliary care work, even though it was not possible for Mhindurwa to accept, suggested Loving Angels Care was not intending to punish her.

However, Judge Gumbiti-Zimuto still ruled that the dismissal was unfair because of a “failure to give consideration to the possibility of furlough and the failure to offer the claimant a proper appeal”.

“I am of the view that in July 2020 a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy,” the judge said.

The judge added that while no suitable work was available at the time, Loving Angels Care had no way of knowing if that would change and didn’t consider whether Mhindurwa should be furloughed for a time to see if any other work became available.

The tribunal also found that the individual who oversaw Mhindurwa’s appeal made no enquiries to ascertain for themself whether the claimant’s contentions were correct or incorrect, they simply accepted what the respondent, Loving Angels Care, stated as correct.

There was also no consideration during the appeal as to whether the claimant should be furloughed.

“In my view, in reality it was not an appeal that was capable of remedying any prior error at all, it was merely a rubberstamp of what had gone before,” said Judge Gumbiti-Zimuto.