Employment Law August 2021 Update

Can a dismissal for redundancy potentially be unfair if furlough was not considered?

Yes, according to a recent employment tribunal decision.  The Claimant was a care assistant and when the person she was looking after was admitted to the hospital, she asked to be furloughed.

Her employer refused and said that she was at risk of redundancy.  She was dismissed by way of redundancy and her appeal was unsuccessful.

The tribunal found her dismissal was unfair (even though it was by way of redundancy) because the furlough scheme was available and not considered and then also because the appeal hearing just assumed that the business had made the right decision in the first place.

This decision is not binding on other tribunals but it is a warning and may mean that other employers are on the receiving end of similar claims.  Remember, however with the reduction in the support offered by the scheme over the last few months, employers may be able to justify why furlough was not considered.

Are employers obliged to continue to furlough staff?

If employment law was consistent, given the answer to question one above, the answer would be yes.  But in a separate tribunal claim (Handley v Tatenhill Aviation Limited), the tribunal reached a different conclusion.

In this case, the tribunal held that an employee who was supported under the furlough scheme was not unfairly dismissed just because his employer chose to make him redundant.  The tribunal said the decision was within the range of reasonable responses.

This just shows that each case will turn on the facts.  It will be important for an employer to have considered the option of furloughing staff but that does not necessarily mean that not using the scheme or taking someone off furlough will always be unfair.

New duty to prevent sexual harassment

There will soon be a new duty on employers to pro-actively prevent sexual harassment in the workplace.  At the moment there is not much to go on and we will have to wait for the draft legislation.  However inevitably employers will have to take positive steps to promote an inclusive working environment. 

Watch this space!

Are we in a culture of hyper-sensitivity?

An employee brought several complaints of harassment against her former employer because she was asked why, as an unmarried woman without children, she had turned down a job which was based abroad.

The tribunal dismissed the complaints, saying they were “unfortunate and awkward” but that it was also important not to encourage a culture of hyper sensitivity.

This decision does not give employers free rein to say whatever they want but some comfort can be drawn from the fact that unfortunate remarks may not necessarily lead to a successful tribunal claim against them.

Naming and shaming of employers

The government has published its next list of employers who underpaid staff between 2011 and 2018 by failing to comply with national minimum wage requirements.  Amount the offenders were John Lewis, Pret a Manger, and the Body Shop.

In total 191 businesses breached national minimum wage requirements.

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