Lovingangels Care Ltd v B Mhindurwa

The Coronavirus pandemic did not alter the statutory test for unfair dismissal. Under Employment Rights Act 1996, section 98(4), fairness remains a fact-sensitive assessment of whether the employer acted reasonably, in accordance with equity and the substantial merits of the case.

In a redundancy case, a reasonable employer may be required to consider furlough as an alternative to dismissal where it could preserve employment while the availability of work is reassessed. The tribunal does not require an employer to furlough the employee, nor to reach a particular conclusion. It may find dismissal unfair where the employer failed properly to consider that option and the process also included an ineffective appeal.

The claimant was a live-in care assistant. When the client for whom she cared entered hospital and later moved into a care home, the respondent had no further live-in placement for her. During the early Coronavirus pandemic, movement between live-in clients was restricted and the supply of work had reduced.

The claimant asked to be furloughed. The respondent dismissed her for redundancy in July 2020. The Employment Tribunal held that the dismissal was unfair because the respondent had not properly considered furlough for a period and the internal appeal was merely a rubber-stamping exercise.

The respondent appealed, contending that the pandemic and the Coronavirus Job Retention Scheme required a different legal analysis, and challenging the Tribunal's treatment of furlough.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding the redundancy dismissal unfair. Its separate finding that the internal appeal was not a proper appeal was not challenged. That finding independently supported the determination of unfair dismissal.

2. The Coronavirus pandemic and the Coronavirus Job Retention Scheme did not require a modified legal test. The ordinary test in section 98(4) of the Employment Rights Act 1996 was sufficiently robust to address exceptional circumstances. Fairness had to be decided by reference to the particular employer's circumstances, including its size and administrative resources, equity and the substantial merits.

3. The Tribunal did not decide that the respondent was required to furlough the claimant or that it would have been entitled to recover payments under the scheme. It found that a reasonable employer should have properly considered a short period of furlough as an alternative to redundancy, while assessing whether live-in work might become available. That conclusion was open to the Tribunal on the evidence that the pandemic had caused the lack of available placements.

4. The Tribunal was entitled to find that the respondent had rejected furlough merely because it had no current work, without properly considering whether temporary furlough could retain the claimant pending a change in circumstances. It thereby applied the ordinary requirement to consider reasonable alternatives to dismissal. Its conclusion that this fell outside the band of reasonable responses was neither substitution of its own view nor perverse.

5. The respondent could not rely on the later closure of the scheme to new entrants, because it had not raised that point before the Tribunal and the claimant had requested furlough before that closure. The EAT, confined to questions of law, could not revisit the Tribunal's factual evaluative role.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the finding that the redundancy dismissal was unfair: [2023] EAT 65.
• Employment Tribunal: held that the dismissal was unfair because furlough had not been properly considered and the appeal process was a rubber-stamping exercise. The judgment was sent to the parties on 6 July 2021.