An employmenttribunal has found that an employee who claimed to have felt uncomfortablecommuting to and attending the office during lockdown and requested to befurloughed was not automatically unfairly dismissed under the Employment RightsAct 1996, section 100(1)(e).
Dismissed by email after repeatedlyasking for furlough
Mr Accattatis wasemployed by Personal Protective Equipment (PPE) seller and distributor FortunaGroup (London) Ltd. On multiple occasions during March and April 2020, he askedto be permitted to work from home or be placed on furlough, reasoning that hewasn’t comfortable using public transport and working in the office.
He was told by Fortunathat it was not possible for his job to be done from home, and that thebusiness was too busy to be able to furlough him. The company instead gave himthe option of taking holiday or unpaid leave.
After turning downthis offer, Mr Accattatis made three more requests to be furloughed. After heasked for the final time on 21 April 2020, he was dismissed by email laterthat day.
An instructive case for employers andemployees during the COVID-19 crisis
As Mr Accattatisdid not have enough service to claim ordinary unfair dismissal, he insteadalleged that he had been subject to automatic unfair dismissal under section100(1)(e) of the aforementioned Act for having taken steps to protect himselffrom danger.
The tribunal notedthe government’s statement on 14 February 2020 that COVID-19 represented aserious and imminent threat to public health. This, along with emails from MrAccattatis voicing concern about commuting to and attending the office, showedhis reasonable belief that there were circumstances of serious and imminentdanger.
However, thereferenced section of the Act also included a requirement for Mr Accattatis tohave taken appropriate steps to shield himself from danger or to havecommunicated the circumstances of danger to his employer. Fortuna had reachedthe reasonable conclusion that Mr Accattatis’s job could not be done from homeand that he did not qualify for furlough, but had instead proposed the optionto him of taking holiday or unpaid leave.
In response, MrAccattatis not only requested that he be able to stay at home – which wasagreed – but also demanded to be permitted to work from home on full pay or befurloughed on 80% of pay. As these demands were not appropriate steps to shieldhimself from danger, his claim was unsuccessful.
The tribunaloutcome was not binding, but nonetheless serves as a reminder that thepandemic, in isolation, may not be sufficient to warrant a refusal to workunder section 100(1)(e) of the 1996 Act, if employers have reasonably attemptedto accommodate the concerns of their workers and lower the risk oftransmission.
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