Furloughing options a relevant factor when assessing reasonableness of dismissal

Two recent employment tribunal decisions have shed light on the way employers are expected to approach redundancy dismissals during the currency of the Coronavirus Job Retention Scheme. While it is for the employer to decide whether or not to use the scheme in a COVID-related redundancy situation, failing to consider the possibility at all may make a resulting dismissal unfair.

In the first of these cases, a flying instructor was dismissed in May 2020 when his employer selected him for redundancy rather than keeping him on furlough. The tribunal said that failing to extend the furlough arrangement did not of itself make the dismissal unfair, as it was for the employer to decide how best to restructure its business in times of unprecedented uncertainty. The dismissal was however found to be unfair for procedural reasons.

The second decision concerns a care worker who was made redundant by a care agency in July 2020 because of a reduction in the amount of work for live-in carers due to the pandemic. In this case, the dismissal was found to be unfair because the employers produced no evidence to explain why furloughing the claimant had not been considered as an alternative to making her redundant.

Although these cases (like all employment tribunal decisions) do not create binding precedents, they provide useful illustrations of how the reasonableness of a decision to dismiss is likely to be assessed against the background of the pandemic. The overall legal requirement that to be fair, an employer must have acted reasonably in treating the redundancy situation as a sufficient reason for dismissing the claimant, continues to provide employers with a degree of flexibility in making these difficult decisions.

The furlough scheme is due to end at the end of September, and is now considerably less generous that it was at the time these redundancies were made. It follows that what is likely to be reasonable now may differ from what was expected of employers last year in the early days of the pandemic. But one suspects that in all cases employers will be expected to explore all the alternatives to redundancy, including the furlough scheme and other sources of Government support.

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