Loving Angels Care Ltd

The Employment Appeal Tribunal dismissed the employer's appeal against an employment tribunal finding of unfair dismissal for redundancy. The EAT held there was no error of law in the tribunal's approach and rejected the suggestion that the Coronavirus pandemic required a changed legal test for unfair dismissal. The tribunal's findings that the employer had failed properly to consider furlough under the Coronavirus Job Retention Scheme as a possible alternative to dismissal and that the claimant's appeal was a mere "rubber-stamp" were material and sufficient to support the conclusion that the dismissal fell outside the band of reasonable responses under section 98 Employment Rights Act 1996.

Background and parties:

• The appellant employer provided live-in and domiciliary care and employed about 50 staff. The respondent employee was engaged as a live-in carer from March 2018.
• The employee's client (referred to as HR) was admitted to hospital on 8 February 2020 and subsequently moved to a care home; from that date the claimant had no further live-in work and received no pay under her contract.

Procedural history:

• The claim for unfair dismissal (redundancy) was heard by Employment Judge Gumbiti-Zimuto on 4 June 2021; the ET judgment was sent on 6 July 2021. The employer appealed to the Employment Appeal Tribunal; the EAT hearing took place on 20 April 2023 and judgment was handed down on 12 May 2023.

Issues before the EAT:

• Whether the legal analysis for unfair dismissal should be altered because of the Coronavirus pandemic and the existence of the Coronavirus Job Retention Scheme (CJRS).
• Whether the employment tribunal erred in finding the dismissal unfair because the employer failed properly to consider furlough as an alternative to dismissal and because the appeal process was inadequate.

Court's reasoning and decision:

• The EAT emphasised that the law of unfair dismissal, in particular the test under section 98 ERA (including the requirement to assess whether the employer acted reasonably "having regard to the size and administrative resources of the employer's undertaking" and "in accordance with equity and the substantial merits of the case"), was sufficiently robust to deal with dismissals occurring during the pandemic; no special legal test was required.
• The tribunal had found that although furlough had been mentioned, the employer dismissed the possibility because it had "no work" for the claimant; the tribunal concluded there had been no proper consideration of a period of furlough to see if circumstances improved. The tribunal also found that the claimant's appeal was a rubber-stamp and provided no remedial review.
• The EAT held these findings were open to the tribunal on the facts and that it was open to the tribunal to conclude the employer had acted outside the band of reasonable responses by failing to consider furlough and by providing an inadequate appeal. The EAT therefore dismissed the employer's appeal.

Other findings and context:

• The judgment records the CJRS announcement on 20 March 2020 and coming into force on 23 March 2020. The tribunal did not decide entitlement under the CJRS; it decided only that furlough was an alternative the employer should have properly considered. The EAT noted some eligibility and timing points were not argued before the tribunal and could not be raised for the first time on appeal.

Appeal dismissed. The Employment Appeal Tribunal held there was no error of law in the employment tribunal's determination that the claimant's dismissal for redundancy was unfair. The ET was entitled to find the employer had not properly considered furlough under the Coronavirus Job Retention Scheme as a possible alternative to dismissal and that the internal appeal was a mere rubber-stamp; those shortcomings rendered the dismissal outside the band of reasonable responses under section 98 Employment Rights Act 1996. The EAT rejected any submission that the pandemic required a different legal test for unfair dismissal.

Appeal from an Employment Tribunal decision (heard 4 June 2021; judgment issued 6 July 2021) up to the Employment Appeal Tribunal (Case No EA-2021-001177-VP). EAT hearing 20 April 2023; judgment delivered 12 May 2023, neutral citation [2023] EAT 65.