In this case, a Tribunal came to a different conclusion, though on slightly different facts.

Mr Handley was one of two flying instructors working for Tatenhill Aviation Limited, a small private airfield. His job involved providing flying lessons and flight experiences to customers.

Shortly after the first lockdown was announced, Tatenhill decided to close, and Mr Handley agreed to be furloughed for a period of three weeks on the understanding that this was a temporary measure until he could return to work as normal.

Having struggled financially pre-pandemic, the company was now generating no income from flight training due to coronavirus restrictions. With no indication as to when the situation might improve, it began a redundancy process. Mr Handley was selected for redundancy and his employment was terminated in August 2020. 

Feeling that the employer had breached the terms of the furlough agreement, Mr Handley brought a claim for unfair dismissal. He also alleged that, when flight training resumed in July, he was kept on furlough and a self-employed instructor was brought in to cover him. As such, he argued that there was in fact work for him to do, and that the real reason he was dismissed was to save costs.

The Tribunal rejected this part of Mr Handley’s claim. It accepted that another employer may have opted to keep Mr Handley on furlough rather than make him redundant; however, the question wasn’t whether the Tribunal would have acted differently, but whether the employer’s decision fell within the band of reasonable responses.

In the judgment, The Judge commented: “It is for an employer, not the Employment Tribunal, to decide how to structure its business and whether to make redundancies. I accept the respondent’s evidence that it needed to cut costs irrespective of the furlough scheme, and that it wanted to use the furlough scheme to pay some of the costs of making the redundancy. The nation was in unprecedented uncertainty at the relevant time, and it is not for me to step into the shoes of the employer and substitute my view for that taken by the employer at the time. The decision to dismiss the claimant notwithstanding the existence of the furlough scheme does not, in my view, render the dismissal unfair.’

On Mr Handley’s other arguments, the Tribunal found no evidence to suggest that the claimant’s redundancy was part of a move towards using self-employed instructors in an attempt to save on costs.

Further, while the Tribunal found that the employer had failed to follow a fair procedure (it concluded that the decision to select the claimant for redundancy was made prior to the start of the consultation process), it held that this would not have changed the outcome in this case.

The Judge said: “The claimant himself told me in evidence that he would have chosen to retain had he been choosing who to make redundant. In light of this admission… there was in my view a 100% chance that the claimant would have been dismissed had a fair procedure been followed in selecting him for redundancy.”