A Different Type of Furlough ClaimSep 13, 2021
As we all predicted, we are witnessing a flurry of ‘furlough’ related Employment Tribunal claims; however, they normally relate to unfair dismissal – the argument that an employee who was made redundant should have been furloughed instead.
A recent Employment Tribunal decision, however, has introduced the potential of a new kind of furlough claim – the argument that an employee was victimised by not being placed on furlough. The case concerned is Mr B Jiminez v Firmdale Hotels Plc (Case Number: 2203194/2020). Mr Jiminez brought a claim for discrimination against the Hotel
Respondent in 2018. It is accepted by the parties that the bringing of that discrimination claim constituted a protected
act for the purposes of victimisation legislation.
In order to succeed with a claim for victimisation, a Claimant must show that there was both a protected act, and that they were subject to detriment because of that protected act. The detriment alleged by Mr Jiminez was not being furloughed from March 2020. The Respondent accepts that it didn’t furlough Mr Jiminez because he was on long term
sick, not on SSP and was not ‘eligible’ for furlough – additionally, the Respondent later said it was because it was now too late to furlough Mr Jiminez since he had not been furloughed before June 2020.
This claim has not been determined at a final hearing yet, but it is interesting to note the Judge’s comments at a preliminary hearing which was to determine whether Mr Jiminez could amend his claim to include this point – spoiler, it was allowed. The Judge commented that he believed the Respondent’s position on furlough was wrong and that Mr Jiminez could have been furloughed. The Respondent argued that it was an honest mistake and that other employees on long-term sick at the time were treated in the same way as Mr Jiminez. If the Respondent’s position is correct, that will be evidence that Mr Jiminez was not subject to detrimental treatment (not being furloughed) because of his bringing of an Employment Tribunal claim (the protected act), as other persons, who did not bring a protected act, were treated the same.
Whilst it doesn’t appear that Mr Jiminez will succeed with a claim for victimisation, it does pose the question, does Mr Jiminez had a valid point and has he simply mislabeled his claim? Not furloughing employees because they are on long-term sick, when they could have been eligible for furlough and thus be entitled to furlough pay as opposed to nil
pay (given SSP had run out) is arguably discriminatory towards disabled employees (provided they can meet the definition of disability). It remains to be seen, therefore, whether Mr Jiminez relabels his claim (and the Judge has hinted at this), in which case it will rest on whether the Respondent’s treatment can be objectively justified – a matter
which, we think, they will struggle with.