G Masiero & Ors v Barchester Healthcare Limited
[2024] EAT 112
Lovingangels Care Ltd v B Mhindurwa
12 May 2023
[2023] EAT 65
Employment Appeal Tribunal
A care company fired a carer because of the pandemic. A judge said that was unfair because the company didn't even consider keeping her employed using government furlough money, and their appeal process was rubbish. The appeals court agreed.
Key Facts
- •The claimant was a live-in carer dismissed by the respondent due to redundancy during the early stages of the Coronavirus pandemic.
- •The respondent did not have alternative client work for the claimant due to pandemic-related restrictions on carer movement.
- •The claimant requested furlough, but the respondent refused due to a lack of available work.
- •The employment tribunal found the dismissal unfair because the respondent failed to consider furlough as an alternative and conducted an inadequate appeal process.
Legal Principles
Right not to be unfairly dismissed
Section 94, Employment Rights Act 1996 (ERA)
Test for unfair dismissal in redundancy cases
Section 98, ERA
Employer's role in dismissal decisions; Tribunal's role in assessing fairness; EAT's role in appeals
Brent London Borough Council v Fuller [2011] EWCA Civ 267, Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677
'Band of reasonable responses' test; Tribunal's consideration of equity and substantial merits
Section 98(4)(b), ERA; Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677
EAT's limited role in appeals; Restriction on raising new issues or evidence
Aitken v Commissioner of Police of the Metropolis [2011] EWCA Civ 582
Employer's duty to consider alternatives to dismissal, including furlough in relevant circumstances
Outcomes
Appeal dismissed.
The employment tribunal correctly applied the law of unfair dismissal, considering the specific circumstances of the case and the respondent's failure to consider furlough as a reasonable alternative. The inadequate appeal process also contributed to the unfair dismissal.