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Employment Tribunal Rules Employee Who Asked to Be Furloughed Was Not Unfairly Dismissed

21 July 2021

An employee who asked to either be furloughed or work from home because of concerns about health and safety arising from Covid-19 was not unfairly dismissed, the Employment Tribunal rules.

Background 

Mr Accattatis was employed as a sales and project marketing coordinator by Fortuna Group (London) Limited (‘Fortuna’) who are suppliers of PPE. Since commencing the job in May 2018 and as a result of a number of complaints made by Mr Accattatis, ‘there was an undercurrent of antagonism’ between the parties, although Fortuna accepted that Mr Accattatis was a good employee where work performance was concerned.

In the run-up to the Claimant’s dismissal on 21 April 2020, Fortuna introduced a number of work practice controls due to the increasing spread of Covid-19 and in line with Government advice.  Such practices included social distancing, the provision on hand sanitisers and expanding its cleaning provision. Fortuna also made clear that because of its frontline role in proving PPE, the business would be staying open, but said that if employees wanted to self-isolate, they were allowed to do so if they took paid leave (as part of their holiday entitlement) or unpaid leave.

At the end of March 2020, Mr Accattatis displayed symptoms of Covid-19 and self-isolated. Immediately prior to and during his period of self-isolation, Mr Accattatis raised concerns about working from the office and also travelling to work by public transport (he travelled to work by bus as he did not have access to a car). On this basis, he therefore requested that he either be allowed to work from home or otherwise, be furloughed. 

Fortuna responded to his requests by stating that he could not do his job at home (for a number of reasons including that he had to be physically present to deal with deliveries and because there was specific software at work that could not be accessed at home). They also stated that he would not be furloughed as they had not experienced any reduction in his workload, but that he could take paid or unpaid leave in line with their general policy.  

Mr Accattatis continued to request that he be allowed to work from home or be furloughed, until he was dismissed with immediate effect and paid in lieu of one month’s notice, on 21 April 2020, weeks before he would have acquired two years’ service. The reason given for his dismissal was ‘a general ongoing failure…over a period of many months to support and comply fully with our company policies and guidelines.' 

What was claimed?

As Mr Accattatis had not been employed by Fortuna for two years when he was dismissed, he did not have the requisite qualifying service to bring a claim for ‘ordinary’ unfair dismissal. Instead, he brought a claim for automatic unfair dismissal under section 100(1)(e) Employment Rights Act 1996 (“Act”) which provides that ‘An employee…shall be…unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that - in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from danger.

Employment Tribunal Judgment

In accordance with the Act, it first had to be decided whether there were circumstances of danger which Mr Accattatis reasonably believed to be serious and imminent. The Judge found, taking an objective view, that this requirement could be met because “the incidence or transmission of novel Corona virus constitutes a serious and imminent threat to public health.” He acknowledged, however, that given the “evolving nature of the crisis and the lack of knowledge about Coronavirus” it was difficult to assess subjectively, whether Mr Accattatis reasonably believed the danger was serious or imminent (as the Act required). Although, the Judge was prepared to accept that he did.

The second question the Judge considered was whether Mr Accattatis took or proposed to take appropriate steps to protect himself or other persons from danger. It was found that he did not. The Judge agreed with Fortuna that he could not do his job from home and also that he was a key worker because Fortuna was at the frontline of the pandemic distributing PPE. Therefore, his demands for furlough or working from home (which were clearly driven by economic reasons) were not appropriate, particularly as it had already been agreed that he (and all other employees) could have stayed at home on paid or unpaid leave.

Even though the Judge found that the “appropriate steps” criteria had not been met, he went on to consider whether the sole or principal reason for the dismissal was that Mr Accattatis took those “appropriate steps” (i.e. because he was reluctant to come into work or use public transport). He concluded that it was not and “that a significant reason why the respondent terminated the claimant’s employment when it did was to prevent him achieving two years’ qualifying service and therefore the protection against unfair dismissal.” The Judge went on to state the reason why they wanted to prevent Mr Accattatis from achieving protection from unfair dismissal “was that he was perceived 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.”

Mr Accattatis’ case was therefore dismissed.

Conclusion

Whilst this is a first instance decision and so is not binding on other Tribunals, it confirms that in order for employees to enjoy the protection afforded by sections 44 and 100 of the Employment Rights Act 1996, employees should clearly set out their concerns to their employer and explain why they think the steps taken by the employer to address the risks are insufficient. Failing to do so will mean that they are unlikely to be able to show that their dismissal (or any other detriment) was the result of their action or complaint. By the same token, employers are provided with something of a lifeline in such scenarios, where they have already acted appropriately to address such a concern, and so a dismissal can be shown to be for other (non-prohibited) reasons.

This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Helena Antoniou or write to us using the contact form below.

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