9 July 2021
In the case of Accattatis v Fortuna Group (London) Limited, the Employment Tribunal found that an employee who resisted coming to work during the Covid-19 pandemic wasn’t unfairly dismissed for health and safety reasons. Although the tribunal found in the employer’s favour, the decision highlights potential claims facing employers when dealing with employees who cite health and safety concerns as reasons for not attending work during the Covid-19 pandemic.
Case background
Mr Accattatis (A) was employed by Fortuna Group as a sales and project marketing co-ordinator. Fortuna Group is a company which sells and distributes PPE and found itself incredibly busy at the outbreak of the pandemic.
A lived around 5 miles from his place of work and took the bus to get there. After the lockdown announcement of 23 March 2020, Fortuna’s Manging Director, Mr Bavetta sent emails to staff confirming that due to the nature of their work, the company would remain open for business and explaining enhanced hygiene measures that would be in place. Around this time A asked his manager if he could work from home. His request was declined but he was told he could take time off to self-isolate if required to do so, either unpaid or by using holidays.
Later in March, A had coronavirus symptoms and self-isolated with appropriate isolation notes. Around this time, A sent an email to Mr Bavetta, asking to be furloughed. This request was refused, as Mr Bavetta explained that there remained work for A to do.
A continued to ask to be furloughed. Eventually, Mr Bavetta emailed A to terminate his employment, citing “a general ongoing failure on your part over a period of many months to support and comply fully with our company policies and guidelines.”
On the day his employment ended, A had under two years’ service. A submitted a claim to the Employment Tribunal (ET) for automatically unfair dismissal.
The Law – Health & Safety and Automatically Unfair Dismissals
Ordinarily an employee requires two years’ service to bring a claim for unfair dismissal. There are particular claims where that qualifying period does not apply, such as dismissals for whistleblowing, and for reasons related to health and safety.
Under Section 100(1)(e) of the Employment Rights Act 1996, employees benefit from enhanced protection against dismissal where they take or propose to take appropriate steps to protect themselves or others from serious and imminent danger.
In such cases, the ET must look at:
- Were there circumstances of danger that the employee reasonably believed to be serious and imminent? Did the employee take or propose to take appropriate steps to protect themselves or other persons from that danger? Where relevant, did they take steps to communicate these circumstances to their employer by appropriate means?
- If the criteria above are made out, was the employer's sole or principal reason for dismissing the employee due to the employee taking or proposing to take those steps?
If both elements of the test are satisfied, the dismissal will be automatically unfair.
Decision
In this case, the ET accepted that A believed there were circumstances of serious and imminent danger. However, it did not accept that the steps proposed by A to protect himself from that danger were appropriate. A had not only demanded to stay at home (which Fortuna had offered – on an unpaid basis) but to be furloughed or allowed to work from home neither of which were ‘appropriate steps’ in the circumstances.
The protection under Section 100(e) did not therefore apply and A’s unfair dismissal claim was dismissed.
Commenting on the case, Kate Wyatt of our Employment team said: “This is an ET decision and therefore not binding on future cases. Although this decision is specific to the facts and circumstances of this case it is a useful reminder of the test applied to health & safety related dismissals. To successfully bring such a claim, the employee must reasonably believe there to be serious and imminent danger and take or propose to take appropriate steps to protect themselves or others from the danger (and take steps to communicate these circumstances to the employer by the appropriate means).
“Employers should also keep in mind that from 31 May 2021 the right not to be subjected to a detriment in health and safety cases under the EA 1996 is extended to workers as well as employees. Although workers cannot bring unfair dismissal claims, employers should take steps to ensure appropriate protections are in place to minimise the risk of detriment claims.”
