Employment Tribunal Covid Decisions

As personnel decisions made by businesses and employers during the pressure of lockdown start to filter through the Employment Tribunal system, we provide analysis and insight on the legal implications.

Prosser v Community Gateway

A Claimant asserting sex discrimination for being sent home at the beginning of lockdown due to being clinically vulnerable was not discriminated against.

Facts

In this instance, the Claimant advised her employer that she was pregnant on 13 March 2020, which was ten days before the first lockdown.  Her employer’s response was to send her home based on government guidance, which at the relevant time described pregnant women as being clinically vulnerable.  Having been sent home the Claimant received her full pay, despite being on a zero hours contract that meant she was only entitled to be paid for the hours that she worked.

The Claimant submitted that being sent home was sex discrimination, as it was a decision based on the fact that she was pregnant.

Decision

The Employment Tribunal dismissed the Claimant’s claim, holding that sending her home was not ‘unfavourable treatment’.  Instead, the Tribunal opined that the employer had simply followed the government’s public health guidance.

Comment

Undoubtedly, the employer’s decision to send the Claimant home was based on the fact that she was pregnant, which does give rise to the charge that the decision was discriminatory.  However, it indicates that where employers can demonstrate that their decision was informed by government guidance and emphasise that it was also for the protection of the individual, Tribunals may be sympathetic.

Mhindurwa v Lovingangels Care

Here, an Employment Tribunal determined that employers have a duty to actively consider furlough when making an individual redundant, and the absence of a reasonable explanation for not furloughing made the dismissal unfair.

Facts

The Claimant worked as a care assistant for Lovingangels Care, employed to provide residential, live-in care for the client, an elderly woman.  Following her client’s move to a care home, it seemed apparent that the Claimant’s role was redundant.  Nonetheless, the Claimant requested to be furloughed, but this was refused on the basis that there was no work for her to undertake.  She was subsequently dismissed on the grounds of redundancy in July 2020.

Decision

In holding that the Claimant’s dismissal was unfair, the Tribunal criticised the decision as unreasonable, as it was at a time when the furlough scheme could have been utilised, to avoid making the Claimant redundant.

Furthermore, it was determined that even though there was no work for the Claimant at the time of her dismissal, furloughing her would have allowed for the possibility of work becoming available at some point in the future.

Comment

Given that the Coronavirus Job Retention Scheme (CJRS) currently continues until 30 September 2021, employers should factor this into any decision to make redundancies.  Indeed, it seems likely that Tribunals will consider what steps a business took to avoid redundancies and may want to know whether it considered making use of the furlough scheme and, if it did, why it rejected the idea.  It’s always helpful in these situations if the business has made a contemporaneous written note of those reasons.

Handley v Tatenhill Aviation Ltd

Here, an Employment Tribunal arrived at the opposite conclusion from the above case, stating that an employer was not obliged to continue to furlough staff.

Facts

The Claimant worked for a small private airfield and provided private flying lessons and flight experiences to the customers of the business.   The flying school was closed shortly after the first lockdown was announced and initially agreed to furlough the Claimant until more normal times.

Even before the pandemic, however, the business had been struggling financially and therefore began to consider redundancies during lockdown.  The flight training part of the business had no income at all and envisaged this would remain the case for the foreseeable future.

As a result of these deliberations, the Claimant was ultimately selected for redundancy and his employment ended on 10 August 2020.

In claiming that he had been unfairly dismissed, the Claimant argued that he had been placed on furlough and that the terms of the furlough agreement prevented his employer from making him redundant.

Decision

The Employment Tribunal made it clear that an employee, who was supported under the CJRS, was not unfairly dismissed simply because his employer decided to make him redundant, even though it could have chosen to have furloughed him for longer.  It recognised that although continuing the furlough period was one viable option, the decision the business reached was within the range of reasonable responses open to it.

Comment

Essentially, the Tribunal determined that it is for an employer, not the Employment Tribunal, to decide how to structure its business and whether to make redundancies.  Again, the employer should always be able to demonstrate its rationale for any decision taken.

If you have any questions please contact the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.