Furlough and Unfair Dismissal 

If you believe you've been unfairly dismissed while on furlough, or shortly after returning, we can offer advice to help you: 
Understand your rights, and whether your employer acted legally 
Negotiate a satisfactory outcome with your employer 
Decide the best way forward and navigate the legal system 
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Can I be dismissed while on furlough? 

Your employment rights, including your right not to be dismissed without a legally fair reason, are not affected by furlough. You may be dismissed during furlough, or after returning from furlough, if your employer has a fair reason and dismissal is a reasonable response. 
 
It is important to note that furlough is a relatively new scheme, and not many cases concerning furlough have made it to the tribunal yet. This means it is especially important to receive specific legal advice for your circumstances, from somebody experienced in employment law. 
 
In general, your employer has a fair reason to dismiss you if: 
 

you are guilty of misconduct 

Misconduct while on furlough could include, for example, working another job while on furlough even though your contract says you shouldn’t, or bringing the company into disrepute with your actions. 
 
Misconduct could also include refusing to return to work without a good reason. The fact that furlough is still available is not itself a good reason for refusing to return. 
 
Believing that your workplace is unsafe could count as a good reason to refuse to return to work, but it is important to protect your rights by following your company policy and seeking advice about whistleblowing. Your employer cannot dismiss you for making a disclosure in the public interest, so long as you follow the correct procedure. If you are concerned about safety at your workplace, get in touch for more advice about whistleblowing and how to protect yourself. 
 

your role is redundant 

Your redundancy rights are unaffected by furlough. Your employer will still need to follow a fair and legal redundancy process and pay you redundancy pay if you are entitled to it. Read more about redundancy and furlough
 

your continued employment would break the law 

While this ground mainly applies to the Right to Work, it could become particularly important if regulations are introduced requiring people to be vaccinated in certain roles – as considered within the health care sector. This would bring its own issues if and when the regulations are put into place. 

you are not capable of the job you were employed to do 

Capability dismissals generally fall into two categories: not capable due to ill-health and not doing your job to a reasonable standard. 
 
Ill-health can mean that your long-term absence for medical reasons is placing your employer in economic difficulty, or your health prevents you from fulfilling your role. This could be the case if your health has declined while you were on furlough. However, if your physical or mental impairment has a substantial, long-term effect on your ability to carry out day-to-day activities, you will have some protection under The Equality Act. In particular, your employer must make reasonable adjustments to help you complete your duties. 
 
Performance-related capability dismissals often occur after a prolonged period of under-performance. Some employees may find it difficult adjusting to the workplace following furlough, especially if the workplace or work processes have changed significantly. Your employer would need to show that dismissal was a reasonable response, which could be difficult if they have not offered training or support before dismissal. 
 

some other substantial reason such as a clash of personalities or failure to adapt to new working processes 

This could include failure to adapt to changes brought about by the pandemic. Issues such as vaccinations and masks also seem to be particularly fraught, leading to the possibility of more disputes within the workplace
 
Again, your employer would need to show that dismissal was a reasonable response, for example by showing that you were given chance to improve the situation but did not respond to training, mediation or other reasonable approaches. 

Does furlough affect how I make a claim for Unfair Dismissal? 

The process of claiming unfair dismissal is not changed by furlough. You will still need to apply for Early Conciliation and make a claim within three months of the date you are dismissed. 
 
If your claim is successful and you are awarded damages, the ‘Basic award’ part of your damages will be based on full pay rather than the furloughed rate. 

What next? 

Furlough is a new area of employment law, and few cases have been decided. This means it is more important than ever to seek specific legal advice about your circumstances, from somebody with a thorough understanding of employment law. 
 

Get in touch 

Do you have a legal matter you'd like to discuss with us? Get in touch using the details below or use the form here and a member of our team will be in touch to discuss your enquiry. 
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Phone: 0121 817 0520 
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Address: Spencer Shaw Solicitors Limited 
St Mary's House, 68 Harborne Park Road,  
Harborne, Birmingham, B17 0DH 
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