UK: Employee Able To Proceed With A Victimisation Claim Concerning His Employer's Failure To Furlough Him

The claimant had previously brought various claims against his employer. The claims were dismissed following a hearing in March 2021. The outcome of the hearing was unknown at the time the preliminary judgment in this case was handed down. It was not disputed that the presentation of the earlier claims was a protected act within the meaning of section 27 of the Equality Act 2010. It was found that the claimant had been excluded from the group of employees furloughed by the employer.

The employer claimed that it had excluded him because he was on long-term sick leave and not in receipt of statutory sick pay (SSP), meaning that the employer considered him ineligible under the Coronavirus Job Retention Scheme (CJRS). It then subsequently considered it too late to furlough him because he had not been furloughed before June 2020.

The employment judge at the preliminary hearing considered that the employer was mistaken in its understanding of the CJRS and could have furloughed the claimant. It had not explained to him properly why it considered him ineligible for furlough. The employer argued that other employees on long-term sick were treated in the same way as the claimant. There was sufficient evidence to shift the burden of proof to the employer enabling the claim to proceed, but the employment judge did note that if the employer's contention was correct then it would be compelling evidence that the claimant had not been subjected to a material detriment because of the protected act. The judge advised the claimant to consider any comparator documents disclosed by the employer as they would be likely to inform his decision on whether to pursue his claim to a final hearing or apply to amend it to a discrimination arising from disability claim.

Take note: As the reported cases concerning employment and Covid-19 continue to rise, it's interesting to see the decision of employers as to who to furlough coming under scrutiny. If an employee was not put on furlough when others were, and the reason appears to be a previous claim, dispute or grievance raised with the employer, then it will potentially be open to the employee to bring a victimisation claim.