Case law updates
COVID-19 – redundancy and furlough: There have been two non-binding tribunal decisions this month considering the tricky issue of whether the existence of the Coronavirus Job Retention Scheme (CJRS) renders a COVID-19-related redundancy unfair. In Mhindurwa v. Lovingangels Care, the judge found that the claimant had been unfairly dismissed when her employer had failed to consider furlough as an alternative to redundancy. In contrast, in Handley v. Tatenhill Aviation, the judge was of the view that the existence of the CJRS did not necessarily render any redundancy dismissal unfair. Whilst seemingly contradictory decisions, the facts of both cases were relevant; whereas the employer in the first claim had failed to give furlough any serious consideration, the employer in the second case had initially furloughed the claimant and could show wider business and financial reasons to justify proceeding with the redundancy. This issue is largely academic now given that the CJRS is due to close at the end of September, but it may be relevant for employers who are currently undergoing redundancy exercises, acting as a reminder that furlough should be actively considered as an alternative to redundancy and that in the absence of a reasonable explanation, the ongoing availability of furlough (albeit now limited) may render the dismissal unfair.
Disability discrimination – knowledge: A recent Employment Appeal Tribunal (EAT) decision provides a helpful reminder that as well as meeting the statutory definition of having a ‘disability’, an employer must know or ought reasonably to know of that disability. The claimant had not disclosed any medical impairment, and the medical report (which in any event is to provide evidence rather than a determination on the issue) did not support the definition being met. The case also highlights that it is the effect of the impairment, and not the impairment itself, which must be ‘long term’, and that this must be judged at the time of the alleged discrimination. [J v. DLA Piper]