Was it unfair to dismiss an employee for raising concerns about commuting to work during lockdown?

In the recent case of Accattatis v Fortuna Group (London) Ltd, an Employment Tribunal ruled that it was not automatically unfair under section 100(1)(e) of the Employment Rights Act 1996 for an employer to dismiss an employee who raised concerns about commuting during lockdown and repeatedly asked to be furloughed. 

The Law

This case concerned the right under section 100 (1) (e) of the Employment Rights Act 1996 which says that an employee will be automatically unfairly dismissed if the reason, or principal reason for the dismissal is that the employee:

in circumstances of danger which the employee reasonably believed to be serious and imminent they took (or proposed to take) appropriate steps to protect himself or other persons from the danger

In contrast to a claim of “ordinary” unfair dismissal (which can only be brought where an employee has two years’ qualifying service with their employer), an employee does not need to have any minimum period of service in order to bring a claim for automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996.   

Before the coronavirus pandemic, the right under section 100 was barely heard of, however it frequently became cited by employees who were concerned about returning to work or travelling to work because of the risk of infection.   Since then, an increasing number of cases involving claims of automatic unfair dismissal based on this right are being heard in the Employment Tribunal.

The facts

The employee in this case was Mr Francesco Accattatis and he was employed by the Fortuna Group (London) Limited as a sales and marketing project manager from 8 May 2018 until his dismissal on 21 April 2020.   He therefore was employed for just short of two years.

In the lead up to the employee’s dismissal, the UK was in the height of the COVID pandemic.  The employer’s business was selling and distributing PPE and therefore it was incredibly busy. 

Due to the nature of the employer’s business, it was allowed to stay open during the country-wide lockdown that started in March 2020.  The employee, who was a key worker, was told that his job could not be carried out at home, and he was required to attend work as normal. 

The employee lived 5 miles away from the employer’s premises and travelled to work by bus.  At the start of the lockdown, he travelled to work on the bus as normal.  However, in mid March 2020, he asked if he could work from home because others were doing so.  He was told this was not possible.  (It is worth mentioning here that the employee was not classified as vulnerable and was not required to shield).  Shortly afterwards, he went on sick leave with coronavirus symptoms. 

Over the course of the following weeks, whilst remaining on sick leave, the employee repeatedly asked his employer if he could work from home or be placed on furlough, saying he was uncomfortable using public transport and working in the office.   His employer, however, refused both requests, on the grounds that his job could not be done from home (which the tribunal accepted was the case) and the business was very busy and needed him to come into work.  The employer offered him to take holiday or unpaid leave instead.   The employee refused this offer and asked three more times to be furloughed.  After receiving the third request, the employer dismissed the employee by email on 17 April 2020.    

As the employee did not have the necessary qualifying period to bring an ordinary unfair dismissal claim, he brought a claim of automatic unfair dismissal under section 100 of the Employment Rights Act 1996.  He claimed that he had been dismissed because he took steps to protect himself from serious and imminent danger. 

The decision

The Judge in the Employment Tribunal confirmed that the transmission of the coronavirus constituted a serious and imminent threat to public health.  Therefore, objectively, the Judge found there were “circumstances of danger which an employee could reasonably have believed to be serious and imminent”.

The next question was whether the employee subjectively believed that the danger to be serious and imminent.  The employee’s case was that after three weeks’ struggling with symptoms, he did not feel comfortable with the idea of using public transport and coming into the office during the lockdown.  The Judge accepted this reason and concluded that the employee did, subjectively, reasonably believe the danger to be serious and imminent. 

The final question the Judge asked, however, was whether the employee in question took or proposed to take “appropriate steps to protect him or other persons from the danger or take steps to communicate these circumstances to the employer by appropriate means.”   Here the Judge found the employee’s claim to fail.  The Judge concluded that the employee did not take or propose ‘appropriate steps’ in that he was not only wanting to stay at home (which had been agreed) but also demanding that he either be placed on furlough or be allowed to work from home.   These demands (for furlough or working from home) were not, in the Judge’s opinion, appropriate steps to protect him from the danger.

As such, the Judge held that the employee’s claim under section 100(1)(e) of the Employment Rights Act 1996 failed.   The Judge also went on to say that even if the criteria for bringing such a claim had been made, the Judge concluded that the sole or principal reason for the dismissal was not because the employee was reluctant to come in to work or use public transport (i.e. it wasn’t because the employee took or proposed to take appropriate steps to protect himself from serious and imminent danger).   Instead, the Judge said that the significant reason why the employer terminated the employee’s employment when it did was to prevent him achieving two years’ qualifying service and therefore the protection against unfair dismissal.  The reason why the employer wanted to prevent the employee gaining this protection was because it considered him to be a difficult and challenging employee who had written impertinent e-mails demanding to be furloughed or to be allowed to work from home.

Points to note and action to take

Obviously, this was a case very much decided on the facts and it is worth pointing out that the employee did not argue that he could not attend work on health grounds or because he had caring responsibilities – both of which would have merited further consideration by the employer including serious consideration to whether to put the employee on furlough.    It seems, however, that the employee in this case did not help himself and it was his attitude – not the fact that he was reluctant to come into work – that was the reason for his dismissal.  

Nonetheless, the decision in this case should give employers some reassurance that if they have done and are continuing to do everything, they reasonably can to accommodate the health and safety concerns of staff and to reduce the risk of transmission, these efforts should hold them in good stead if any employee should subsequently make a claim based on health and safety grounds under section 100 of the Employment Rights Act 1996.

You can read the full Judgement here: Accattatis v Fortuna Group (London) Ltd 

Photo by Glenn Carstens-Peters on Unsplash

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