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Employee on long-term sick leave was victimised by not being furloughed

An employer (a hotel) who did not furlough its employee under the Coronavirus Job Retention Scheme (CJRS) has had a victimisation claim brought against it at a preliminary hearing, since its actions subjected the employee to a detriment under section 27 of the Equality Act 2010.

The employee was on long-term sick leave and was not receiving Statutory Sick Pay, so, the employer believed the employee was not eligible to be furloughed under the CJRS. The employment tribunal held that the employer could have furloughed the employee and they failed to explain to the employee their reasons for not doing so.

The employer’s defence was that there was no differential treatment because other employees on long-term sick leave were also not placed on furlough. At the preliminary hearing, the judge allowed the employee’s claim to proceed, but advised the employee to consider the employer’s defence. The employee must decide if they will bring their victimisation claim to a final hearing, or if they will amend their argument to instead bring a discrimination claim arising from their disability.