Is my redundancy an unfair dismissal?

If you think your redundancy may be an unfair dismissal, the first thing you need to do is take some advice.  In this blog, we’ll look at some of the complex situations around redundancy and furlough. We’ll explain a couple of situations where redundancy may have an unfair dismissal claim. And look at what is happening in employment law at the moment. 

Redundancies during the pandemic

Redundancies during the pandemic peaked during September – November 2020, with over 14,000 people made redundant during that time. This coincided with changes to the furlough package – or job retention scheme – offered by the UK Government. 

But could some of those people who have been made redundant been offered furlough instead? 

In fact, if we look right back to the start of the pandemic where the economy contracted and many businesses cocooned themselves from the financial implications of the lockdown, could some employees have been offered furlough over redundancy? 

When furlough may be an alternative option

Furlough can benefit the business as much as it does employees. Firstly, getting furlough pay can relieve a lot of your stress around redundancy. 

Secondly, recruitment takes time and is costly. So keeping a member of staff on furlough with a view that there may be work available in the future makes financial sense. 

It avoids hiring costs, training and development, and you know how your job works better than anyone else. 

Is my redundancy an unfair dismissal? 

If you’ve been made redundant when you could have been furloughed you may have been unfairly dismissed. 

Your employer cannot make redundancies based on:

•  age
• disability
• gender
• race
• religion
• sexual orientation
• marital status
• membership or non-membership of a trade union

According to the Chartered Institute of Personnel and Development (CIPD):

“If staff have been put on furlough because they have caring responsibilities, or are shielding for health reasons, subsequently pooling or selecting these employees for redundancy is likely to constitute indirect discrimination based on sex, disability or age.

“If the principal reason for furloughing staff is that they have child-care responsibilities, a health condition or are more vulnerable to Covid-19 because of their age, it will be important that the employer ensures that they are not placed at greater risk of redundancy because they have been furloughed.”

Redundancy before being offered furlough

Recently, a case has come to an employment tribunal where the court found in favour of the employee who was made redundant. 

In this particular case, Ms Mhindurwa was a care assistant providing live-in care for a client for over two years. The client was moved to a care home. Ms Mhindurwa asked to be furloughed in May 2020 and made redundant in July 2020. 

While Ms Mhindurwa had no work at the time of redundancy, the judge said a reasonable employer would have given consideration to furlough as an alternative. The fact that Ms Mhindurwa asked for furlough in May 2020 was a factor in the judge’s decision. 

If you were made redundant when furlough could have been offered, get in touch to see if we can help. 

Redundancy on furlough

You can be made redundant while on furlough but your employer’s decisions still need to follow a fair redundancy procedure. This means that being on furlough should not be the main consideration when it comes to redundancy. 

Moreover, your employer needs to consider how the redundancy process takes place while on furlough. For example, if your place of work is still operating remotely, will they see you in person to discuss redundancy or will they conduct consultation meetings online? 

You are also entitled to full pay for your notice period, rather than furlough pay. Plus, your redundancy pay should be based on your full salary and not the rate that you have received while on furlough. 

How we can help?

If you have been made redundant, or are being offered this option, have a chat with us.