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Furlough fail – new tribunal guidance

Posted on: August 11th, 2021 by Ginny Hallam

Failing to consider furlough when making an employee redundant may make the dismissal unfair following a recent decision.


The employee was a care assistant with over two years’ service. She was put at risk of redundancy. The employee asked to be furloughed with her employer refusing due to there being ‘no work for her’ – she was dismissed by reason of redundancy in July 2020 and claimed unfair dismissal.

Practical takeaway 

Firstly, this decision does not mean that if you choose to make redundancies whilst furlough is available you’ll automatically be found to have done so unfairly. But, as ever the tribunal will look at the steps you took to avoid making redundancies including your approach to furlough.

If you take the decision that furlough is not a viable alternative to redundancies, you’ll need to discuss this as part of the consultation, keep records of your conversations, evidence why furlough wasn’t a viable alternative and write to the employee confirming as much.

Get in touch if you need our support in avoiding redundancies or navigating your way through the process. 


This update is accurate on the date it was sent (12 August 2021), but may be subject to change which may, or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.