We may think that we have heard the last of furlough, but it is still rearing its head in employment cases. During the pandemic, a government-backed scheme enabled employers to claim to cover wages for employees who were placed on temporary leave due to Covid 19. This was known as the furlough scheme. The purpose of it was to enable employers whose businesses had suffered a downturn to retain employees as an alternative to laying them off.
The Employment Appeal Tribunal (EAT) has recently heard an interesting case regarding the interrelationship between unfair dismissal and the furlough scheme.
The claimant was a live-in carer. The person for whom she cared went into hospital. In the normal course of events the claimant would have moved to care for another of the respondent's clients. In the early stages of the Covid-19 pandemic there was limited scope for such movement. The respondent did not have another client for the claimant to move to because of the Covid-19 pandemic.
The respondent dismissed the claimant by reason of redundancy.
The Employment Tribunal held that her dismissal was unfair because the respondent did not consider the possibility of putting the claimant on furlough for a period while it ascertained whether the situation would improve and it would be able to place the claimant with another client; and also, because the appeal hearing was no more than a rubber-stamping exercise.
The respondent appealed against the finding of unfair dismissal. There the EAT found that there was no error of law in the decision of the Employment Tribunal. Determining a claim of unfair dismissal in respect of a dismissal that occurred in circumstances related to the Covid-19 pandemic does not require any variation to the law of unfair dismissal. The EAT declared that the law of unfair dismissal was 'robust enough to deal with such exceptional circumstances'.
The furlough scheme has now closed, but employers and employees should consider the impact of the furlough scheme in relation to any claim during the period when the scheme was available.
To discuss this or any other employment matter, contact us.