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Does failing to consider furlough make dismissals unfair?


In a recent tribunal case an employment judge found that it was unfair to make someone redundant without considering whether to furlough the employee.  The judge stated that employers have an active duty to consider furloughing staff and the absence of a reasonable explanation as to why the employee was made redundant and not furloughed could amount to an unfair dismissal.

This is the first of many cases now reaching tribunals from the first lockdown last year and is an important point that employers should note especially as furlough remains an option until the end of September 2021.

In this particular case the claimant, who was a care assistant had worked her employer for over two years and requested that she was placed on furlough when an elderly women whom she provided live-in care for moved to a care home.  This resulted in the Claimant having no work and she was accordingly dismissed for redundancy.   Prior to her dismissal the Claimant requested that she be placed on furlough, but her employer refused her request.

The employment judge commented that although her employer had no work for the Claimant, there was no way of the employer knowing whether that would remain the case or if further work could arise.  The judge stated that a reasonable employer would have considered the option of furloughing the claimant rather than dismissing her on the grounds of redundancy.

The dismissal was therefore found to be unfair.

For advice on this, or any other employment matter, contact the employment team on 01905 723 561 or email: Guy.salter@smesolicitors.co.uk or Sonia.ali@smesolicitors.co.uk

Added: 19 Aug 2021 14:14


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