COVID-19: Furlough case law starts to emerge
In recent weeks tribunal decisions have started to emerge on issues that have arisen as a result of the pandemic.
In Mhindurwa v Lovingangels Care, the tribunal held that a live-in care worker was unfairly dismissed when her employer failed to consider furlough as a way to avoid her redundancy. The redundancy situation arose when the elderly woman the employee cared for went into a care home and her employer couldn’t offer her any more live-in care work due to COVID-19 restrictions. The Judge took the view that a reasonable employer would have given consideration to whether the employee should be furloughed for a period of time to see whether live-in care work would be required in the near future, or whether there was other work she could do.
In contrast, in Handley v Tatenhill Aviation Limited the tribunal made clear that it was not unfair for an employee to be made redundant even though his employer could have chosen to leave him on furlough for longer.
In Prosser v Community Gateway Association Ltd, an employee was found not to have been discriminated against when her employer sent her home at the start of the pandemic because she was pregnant and classed as clinically vulnerable, thereby following Government guidance at that time.
These are all first instance decisions, which means that other tribunals are not obliged to follow them, and were determined on their facts. However, they do highlight the point that, according to the Tribunals, there is no single ‘right’ answer for dealing with these types of issues, and each case will turn on its specific circumstances.
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