An employment tribunal has found that an employee who claimed tohave felt uncomfortable commuting to and attending the office during lockdownand requested to be furloughed was not automatically unfairly dismissed underthe Employment Rights Act 1996, section 100(1)(e).
Dismissed by email after repeatedly asking for furlough
Mr Accattatis was employed by Personal Protective Equipment (PPE)seller and distributor Fortuna Group (London) Ltd. On multiple occasions duringMarch and April 2020, he asked to be permitted to work from home or be placedon furlough, reasoning that he wasn’t comfortable using public transport andworking in the office.
He was told by Fortuna that it was not possible for his job to bedone from home, and that the business was too busy to be able to furlough him.The company instead gave him the option of taking holiday or unpaid leave.
After turning down this offer, Mr Accattatis made three morerequests to be furloughed. After he asked for the final time on 21 April2020, he was dismissed by email later that day.
An instructive case for employers and employees during theCOVID-19 crisis
As Mr Accattatis did not have enough service to claim ordinaryunfair dismissal, he instead alleged that he had been subject to automaticunfair dismissal under section 100(1)(e) of the aforementioned Act for havingtaken steps to protect himself from danger.
The tribunal noted the government’s statement on 14 February2020 that COVID-19 represented a serious and imminent threat to public health.This, along with emails from Mr Accattatis voicing concern about commuting toand attending the office, showed his reasonable belief that there werecircumstances of serious and imminent danger.
However, the referenced section of the Act also included arequirement for Mr Accattatis to have taken appropriate steps to shield himselffrom danger or to have communicated the circumstances of danger to hisemployer. Fortuna had reached the reasonable conclusion that Mr Accattatis’sjob could not be done from home and that he did not qualify for furlough, buthad instead proposed the option to him of taking holiday or unpaid leave.
In response, Mr Accattatis not only requested that he be able tostay at home – which was agreed – but also demanded to be permitted to workfrom home on full pay or be furloughed on 80% of pay. As these demands were notappropriate steps to shield himself from danger, his claim was unsuccessful.
The tribunal outcome was not binding, but nonetheless serves as areminder that the pandemic, in isolation, may not be sufficient to warrant arefusal to work under section 100(1)(e) of the 1996 Act, if employers havereasonably attempted to accommodate the concerns of their workers and lower therisk of transmission.
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