Jennifer Linford successfully defended an appeal by the appellant that its dismissal of the claimant was not unfair.
The appellant, in one of its three grounds of appeal, sought to argue that the Judge in the first instance was wrong to have concluded that the claimant’s dismissal was unfair on the basis that it had failed to consider the possibility of putting the claimant on furlough for a period while it ascertained whether the situation would improve, before making the claimant redundant.
Jennifer Linford successfully argued that “the appellant had, or ought to reasonably to have had, in its contemplation that redundancy was likely and thus its obligations to consider alternatives to redundancy was triggered”
Counsel went on to submit to the EAT that “It is an uncontroversial and irrefutable point, as per the guidelines in Polkey v A E Dayton Services Ltd  IRLR 503
that at the outset of a fair redundancy procedure (and throughout the consultation process) a reasonable employer should consider whether it can avoid making redundancies, and this consideration included (given the circumstances) the possibility of furloughing the at risk employee. There is, no difference (on these facts) to have expected a reasonable employer to have considered furloughing, as you would have expected them to have applied their mind to alternative vacancies. The principle is the same: can this redundancy be avoided and, if so, by what reasonable means?
The Respondent didn’t consider furloughing the Claimant, they had already predetermined, without any further thought or consideration, that the Claimant couldn’t be furloughed and instead proceeded with her redundancy”
Jennifer comments on the outcome of this appeal that “this case is a useful reminder that there is difference between giving an explanation as to why something hasn’t been done and demonstrating that it had been properly considered: which would involve some sort of evaluation/assessment, which the employer should be able and ready to evidence”.
The full Judgement is available here: https://assets.publishing.service.gov.uk/media/645dc31aad8a03001138b33d/Lovingangels_Care_Ltd_v_Mrs_B_Mhindurwa__2023__EAT_65.pdf