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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lovingangels Care Ltd v Mhindurwa (Unfair Dismissal) [2023] EAT 65 (12 May 2023) URL: https://www.bailii.org/uk/cases/UKEAT/2023/65.html Cite as: [2023] WLR(D) 229, [2023] EAT 65, [2023] ICR 1021 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
Mrs Elizabeth Williams
Mrs Gemma Todd
____________________
Lovingangels Care Ltd |
Appellant |
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- and - |
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Mrs B Mhindurwa |
Respondent |
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Jennifer Linford (instructed by DAS Law) for the Respondent
Hearing date: 20 April 2023
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Crown Copyright ©
SUMMARY
Unfair Dismissal
The claimant was a live-in carer. The person for whom she cared went into hospital. In the normal course of events the claimant would have moved to care for another of the respondent's clients. In the early stages of the Coronavirus pandemic there was limited scope for such movement. The respondent did not have another client for the claimant to move to because of the Coronavirus pandemic. The respondent dismissed the claimant by reason of redundancy. The employment tribunal held that her dismissal was unfair because the respondent did not consider the possibility of putting the claimant on furlough for a period while it ascertained whether the situation would improve and it would be able to place the claimant with another client; and also, because the appeal hearing was no more than a rubber-stamping exercise. The respondent appealed against the finding of unfair dismissal. There was no error of law in the decision of the employment tribunal. Determining a claim of unfair dismissal in respect of a dismissal that occurred in circumstances related to the Coronavirus pandemic does not require any variation to the law of unfair dismissal, which is robust enough to deal with such exceptional circumstances.
HIS HONOUR JUDGE JAMES TAYLER
Overview
The Law
94. The right.
(1) An employee has the right not to be unfairly dismissed by his employer.
98. General.
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it
(c) is that the employee was redundant, or
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case. [emphasis added]
12. A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take the decision whether or not to dismiss an employee; for the tribunal to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the Employment Appeal Tribunal (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the tribunal. As appellate tribunals and courts are confined to questions of law they must not, in the absence of an error of law (including perversity), take over the tribunal's role as an "industrial jury" with a fund of relevant and diverse specialist expertise.
All the authorities so far cited date from a time when unfair dismissal cases were heard by a tribunal including two lay members. By an amendment made in 2012 unfair dismissal claims can be heard, as this one was, by an employment judge sitting alone. Thus the traditional reference to the tribunal being an industrial jury is less apt than it used to be (although it was always inaccurate, in that juries give verdicts without reasons, whereas employment tribunals give detailed reasons). However, the statutory restriction on appeals to questions of law has not been amended. So, as in magistrates' courts, the tribunal has the same task to perform whether it is a tribunal of three or of one.
The 'band of reasonable responses' has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide. It is important not to overlook s.98(4)(b) of the 1996 Act, which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss 'in accordance with equity and the substantial merits of the case'. This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal's consideration of a case of this kind to be a matter of procedural box-ticking. As EJ Bedeau noted, an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer.
28. The appellate body, whether the Employment Appeal Tribunal or this court, must be on its guard against making the very same legal error as the tribunal stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the tribunal without committing error of law or reaching a perverse decision on that point.
29. Other danger zones are present in most appeals against tribunal decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.
30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision. The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.
55. This court only has jurisdiction to set aside the decision of the employment tribunal if it made an error of law in the way in which it decided the issues presented to it by the parties. In the absence of exceptional circumstances, which are not present in this case, this court does not allow a party to raise an issue that was not raised in the employment tribunal, or to adduce fresh evidence on the issues that were raised.
The employment tribunal hearing
The findings of the employment tribunal
The Respondent provides live-in and domiciliary care in the community in the Bracknell and Northampton areas. It currently employs 50 staff.
On the 18 May 2020 the respondent wrote to the claimant stating that the respondent was not able to offer the claimant live-in care work. The claimant was invited to attend a meeting with the respondent. The purpose of the meeting was to discuss the reasons why her employment may come to an end; whether the claimant believed that her employment could be continued and if so how, and what alternative work may be available. The claimant was told that she could be accompanied by an accredited trade union representative. The claimant was told that if her employment was terminated she would be entitled to a redundancy payment.
The respondent's position is explained by the evidence of Ms Moreblessings Chakafa: "In May 2020 the Claimant asked to be furloughed, but we could not agree as there was no work for her. In an emailed letter dated 18 May 2020 I confirmed to the Claimant that we did not have any other suitable work and invited her to attend a telephone meeting to discuss. She was informed that a possible outcome could be her dismissal for redundancy"
As Ms Chafaka explained: "We didn't have any immediate work for the claimant then the amount of live-in work reduced significantly due to Covid-19. The only work we had was local domiciliary care which was not workable for the Claimant because of her Birmingham location." This is the type of situation that the furlough scheme envisaged. Why it was not considered or not considered suitable in this case is not explained by the respondent.
He accepted that he made no enquires to ascertain for himself whether the claimant's contentions were correct or incorrect, he simply accepted what the respondent stated as correct. In my view, in reality it was not an appeal that was capable of remedying any prior error at all, it was merely a rubberstamp of what had gone before.
The conclusion of the employment tribunal
45. The whole purpose of the furlough scheme was to avoid lay off of employees because of the effect of the Coivd-19 pandemic by providing significant government support to employers. I am of the view that in July 2020 a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy. In this case the claimant's position was impacted by Covid-19. As Ms Chafaka explained: "We didn't have any immediate work for the claimant then the amount of live-in work reduced significantly due to Covid-19. The only work we had was local domiciliary care which was not workable for the Claimant because of her Birmingham location." This is the type of situation that the furlough scheme envisaged. Why it was not considered or not considered suitable in this case is not explained by the respondent.
46. The respondent stated that there were no live-in care clients being referred to the respondent because movement between clients requiring live-in care was restricted due to the Covid-19 pandemic. The respondent had no way of knowing when it was going to change. The respondent's position was simply that at the time it had no live-in care work so could not agree to furlough the claimant. The respondent does not appear to have considered whether the claimant should be furloughed for a period of time to see what if any change there was in the availability of live-in care work or other work that the claimant could take on.
47. The claimant's appeal hearing before Mr Pacey was a rubberstamp exercise and not a proper appeal. He gave no consideration to whether the claimant should be furloughed.
48. I am of the view that the failure to give consideration to the possibility of furlough and the failure to offer the claimant a proper appeal render the claimant's dismissal unfair. [emphasis added]
The appeal
Ground 1
Ground 2
Ground 3