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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] ICR 1021, [2023] EAT 65 |
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B
e f o r e :
Mrs Elizabeth Williams
Mrs Gemma Todd
____________________
Lovingangels Care Ltd | Appellant |
|
| - and - |
||
Mrs B Mhindurwa |
Respondent |
____________________
Jennifer Linford (instructed
by
DAS Law) for the Respondent
Hearing date: 20 April 2023
____________________
VERSION
OF JUDGMENT
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
be
applied when deciding a claim of unfair dismissal. Put another way, was there a special approach that the employment tribunal should have adopted to dismissals occurring in the context of the Coronavirus pandemic, in respect of which the EAT should provide guidance. Our simple answer to these questions is no.
be
applied to those circumstances required alteration. While most people were, to a greater or lesser extent, affected
by
the Coronavirus pandemic, employment tribunals have over the years had to consider claims of unfair dismissal in circumstances that were extraordinary for a particular employer and its employees. A place of work
burning
down, or the loss of a key customer are exceptional circumstances of the type that the law of unfair dismissal has had to grapple with since its inception, and in respect of which general guidance is not of great assistance. Even in the case of an event such as the Coronavirus pandemic that has
very
significant and widespread effects, the circumstances of individual employers will
be
varied,
and must
be
considered when determining claims of unfair dismissal.
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 due course. 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 placing 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.
The Law
be
unfairly dismissed is provided for
by
section 94 Employment Rights Act 1996 ("ERA"):
94. The right.
(1) An employee has the right not tobe
unfairly dismissed
by
his employer.
be
applied in determining a claim of unfair dismissal is set out in section 98 ERA:
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 shownby
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) shallbe
determined in accordance with equity and the substantial merits of the case. [emphasis added]
be
forgiven for emphasising parts of the
best
known statutory provision in employment law.
But,
as HH Peter Clark often reminded us, there is much refreshment to
be
gained
by
drinking from the clear water of the statute. And for all that section 98(4) ERA is so
very
familiar, it is a rarity for a decision of the employment tribunal in a claim of unfair dismissal to enlighten us as to the "size and administrative resources of the employer's undertaking" or to refer specifically to "equity and the substantial merits of the case".
be
said that we are merely players. We have specific roles. None of the players should upstage the others
by
trying to take on their roles. Mummery LJ reminded us of the roles we play in Brent London
Borough
Council
v
Fuller [2011] EWCA Civ 267, [2011] ICR 806:
12. A summary of the allocation of powers and responsibilities in unfair dismissal disputesbears
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.
Bean
LJ reiterated that approach in Newbound
v
Thames Water Utilities
Ltd
[2015] EWCA Civ 677, [2015] IRLR 734 at paragraph 68:
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.
been
established that it is not for the employment tribunal to substitute its decision for that of the employer, that would
be
to usurp the role of the employer. The role of the employment tribunal includes considering whether the employer acted within the
band
of reasonable responses. The
band
is not so wide as to leave no room for the employment tribunal to conclude that the dismissal was "unfair", the statutory term; otherwise, the provision would
be
purposeless, and the employment tribunal would have no role. As
Bean
LJ stated in Newbound, at paragraph 61:
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.
band
of reasonable responses, the EAT must remember its role in considering an appeal. The EAT is not the star of the show
but
can only determine whether the employment tribunal erred in law. In Fuller Mummery LJ held:
28. The appellatebody,
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 differencebetween
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 statedby
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.
v
Commissioner of Police of the Metropolis [2011] EWCA Civ 582, [2012] ICR 78 Mummery LJ stated:
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 itby
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.
by
reason of redundancy an employer will generally
be
expected to consider alternatives to dismissal, in particular, alternative employment. It appeared from the way in which the appeal was advanced that it was asserted there was something about the Coronavirus pandemic and the CJRS that required a special legal analysis. We asked Mr Collyer whether he contended that it was not open as a matter of law to an employment tribunal to hold that a dismissal
by
reason of redundancy was rendered unfair
because
a reasonable employer would have considered the possibility of furlough as an alternative to redundancy. He was reluctant to answer the question
but
eventually stated that was not his contention. He conceded that a dismissal could
be
rendered unfair
because
of a failure to consider furlough as an alternative to redundancy. All would depend on the facts of the case. It would not necessarily
be
unfair not to consider the possibility of furlough and an employer might consider the possibility
but
reject it without acting outwith the
band
of reasonable responses. His argument was advanced on the
basis
that in the particular circumstances of this case the employment tribunal reached a decision that was not open to it.
The employment tribunal hearing
by
Employment Judge Gumbiti-Zimuto. The judgment was sent to the parties on 6 July 2021. The judgment was clear and concise. We consider that EJ Gumbiti-Zimuto knew full-well the role he had to play in determining the claim of unfair dismissal.
The findings of the employment tribunal
The Respondent provides live-in and domiciliarycare
in the community in the
Bracknell
and Northampton areas. It currently employs 50 staff.
care
assistant
by
the respondent on 23 March 2018. In its response the respondent stated that she was engaged as a "live-in
carer".
care
for a client of the respondent's. There was then a gap until October 2018, when the claimant started to provide live-in
care
for a client of the respondent's referred to as HR. On 8 February 2020, HR was admitted into hospital. She subsequently left hospital to live in a
care
home. The claimant was no longer required to provide live-in
care
for HR. From 8 February 2020 the claimant was not provided with further work and, pursuant to the terms of her contract, received no pay.
by
the Chancellor of the Exchequer on 20 March 2020, and came into force on 23 March 2020.
On the 18 May 2020 the respondent wrote to the claimant stating that the respondent was not able to offer the claimant live-incare
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 explainedby
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"
be
furloughed in May 2020.
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 domiciliarycare
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.
care
was the Coronavirus pandemic.
been
furloughed. This matter was not raised in the employment tribunal.
by
Zoom on 12 June 2020, the claimant was informed that the respondent could only offer her domiciliary
care
work. This was not an option for the claimant
because
she lives in
Birmingham
and the domiciliary
care
work was available in the
Bracknell
and Northampton areas.
by
Kyle Pacey. At paragraph 19, the employment tribunal held of Mr Pacey's consideration of the appeal:
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 myview,
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
been
dismissed
by
reason of redundancy. The employment tribunal concluded that the dismissal was unfair:
45. The whole purpose of the furlough scheme was to avoid lay off of employeesbecause
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-incare
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 hearingbefore
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 theview
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
by
noting that the employment tribunal found that the dismissal was unfair on two grounds: first, the failure properly to consider a period of furlough and, second, the failure to adequately consider the appeal. There is no challenge to the finding that the lack of a proper appeal rendered the dismissal unfair. An appeal lies against a determination. The determination was that the dismissal was unfair. The failure to challenge the finding in respect of the appeal undermines the other challenges to the decision. We will consider the grounds of appeal subject to that proviso.
Ground 1
because
of covid". The respondent challenges this summary.
basis
of the decision of the employment tribunal. The employment tribunal concluded that the dismissal of the claimant was unfair
because
of a failure properly to consider the possibility of furlough for a period to allow for the possibility that it would
become
easier for live-in
carers
to move to
care
for people in need of their assistance, and that the respondent would obtain such clients. The decision was not that the employer was required to furlough the claimant,
but
that it should properly consider the possibility. The employment tribunal accepted that there had
been
some cursory consideration of furlough
but
held that the possibility had
been
rejected
because
the respondent had no work for the claimant. The point the employment judge was making
by
stating that "the whole purpose of JRS, known as furlough, is to avoid the layoff of employees
because
of covid" was that the CJRS generally applied
because
there was no work for employees. The real issue under the scheme was whether work was not available
because
of the Coronavirus pandemic. We consider that, insofar as it was relevant to the determination, the employment judge's description of the scheme was reasonably accurate. The scheme allowed employees to
be
retained in employment where no work was available
because
of the Coronavirus pandemic. This helped employees
by
providing them with an income and employers
by
not losing a skilled workforce that might no longer
be
available when the situation improved, and work could recommence.
been
instructed
by
the employer to cease all work" where the instruction has
been
given "
by
reason of circumstances arising as a result of coronavirus or coronavirus disease". It is asserted in the appeal that on a proper construction the claimant would not fall within the terms of the CJRS
because
she was not instructed to cease work
because
of the Coronavirus pandemic
but
because
HR no longer needed
care.
There is no finding that the respondent applied this analysis at the time it decided to dismiss the claimant. There are also strong arguments that the analysis advanced in the appeal involves construing the CJRS as if it were a statute and disregarding its purpose. If the respondent would,
but
for the Coronavirus pandemic, have had another client for the claimant to move to in due course, and it wished to keep her on its
books,
but
instructed her to undertake no work
because
there were currently no new clients
because
of the Coronavirus pandemic, it is strongly arguable that the scheme would apply to the circumstances of the claimant's employment. Mr Collyer stated in his oral submission that it was "open to question" whether the scheme would apply. Fundamentally, these would have
been
issues for the employer to determine had it properly considered the possibility of furloughing the claimant.
be
eligible to recover payments made to the claimant under the CJRS. If the respondent had properly considered the possibility of a short period of furlough it would have
been
for it to take reasonable steps to understand the proper construction of the CJRS and decide whether it felt that a period of furlough was appropriate. What the respondent would have decided on a proper consideration of the possibility of furlough is a matter that could potentially
be
relevant to remedy. All the employment judge determined was that in the particular circumstances of this case the possibility of a period of furlough to see if the situation improved should have
been
considered as an alternative to dismissing the claimant
by
reason of redundancy.
been
considered properly. He was entitled to apply the same approach to furlough as he would to any possible alternative to dismissal that an employer might, in appropriate circumstances,
be
expected to consider if acting reasonably.
Ground 2
by
the employment judge
because
it was not raised
by
the respondent. Mr Collyer has not asserted any reason why he should
be
able to raise a point he did not argue in the employment tribunal. Furthermore, the claimant had asked to
be
furloughed well
before
the CJRS was closed to new entrants.
been
considered. The employment judge noted that the respondent had given the possibility of furlough some cursory consideration
but
held that the option of furlough was immediately dismissed on the
basis
that the respondent had no work for the claimant. The finding of the employment judge was that there was no proper consideration of the possibility of furloughing the claimant to give some time for the situation in respect of the movement of live-in
carers
to improve and the respondent to obtain new clients. There was nothing unrealistic in requiring the employer to give proper consideration to this possibility
because
the need for live in
carers
did not cease during the Coronavirus pandemic.
Ground 3
view
by
saying that the Appellant should have considered furlough for a period of time". The employment judge did nothing of the sort. He concluded that the respondent acted unreasonably in failing properly to consider the possibility of furlough. That was a finding that the respondent had acted in a manner that fell outside of the
band
of reasonable responses. The fact that the respondent disagrees with this determination does not mean that the employment judge substituted his determination for that of the employer. As
Bean
LJ stated in Newbound "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". In reality, the assertion is of perversity, and the respondent has not established the employment judge made a determination that was not open to him on the specific facts of this case.