another health and safety dismissal – this time it was fair

This is the third case that I have read (there may be others!) where an Employment Tribunal (ET) has considered whether an employee’s claim that they have been unfairly dismissed under section 100 of the Employment Rights Act 1996 (ERA 1996) is fair or not. This time the ET considered the health and safety dismissal fair.

Under the ERA 1996, employees are entitled to raise their concerns of health and safety at work and if they are dismissed for doing so, they may have a claim for automatic unfair dismissal under section 100.

Mr Accattatis was employed by Fortuna Group (London) Limited as a sales and project marketing co-ordinator. Fortuna sells and distributes PPE.

During the first lock down (in March and April 2020) Mr Accattatis repeatedly asked to work from home or be placed on furlough. The reason being that he felt uncomfortable commuting and working in the office.

Fortuna rejected this request, telling Mr Accattatis that his job could not be done from home, and that furlough was not possible because the business was so busy at that time. They stated that if he wanted to stay at home he could use his holiday or take unpaid leave. Mr Accattatis declined this offer but asked on three more occasions to be furloughed. Following his final request, Fortuna dismissed him by email.  Mr Accattatis felt the health and safety dismissal claim was unfair and decided to submit a claim to the ET.

Mr Accattatis had been employed for less than 2 years and therefore he did not have qualifying service to bring a claim of ordinary unfair dismissal.

He submitted a claim to the Employment Tribunal claiming that he had been automatically unfairly dismissed for health and safety concerns, relying on section 100(1)(e) of the ERA 1996, for having taken steps to protect himself from danger.

The ET dismissed Mr Accattatis’s claim. The ET agreed that there were circumstances of danger that Mr Accattatis reasonably believed to be serious or imminent however it did not agree that Mr Accattatis took, or proposed to take, appropriate steps to protect himself (if he had, he would have taken holiday or unpaid leave). His request to be placed on furlough was not sufficient to satisfy this aspect of the legal test.

Further, the ET also stated the even if the legal test had been satisfied, the dismissal would have been fair in the circumstances because the reason, or the principal reason, for the health and safety dismissal was because Fortuna considered Mr Accattatis to be “difficult and challenging” and was approaching 2 years’ service which would have given him protection from unfair dismissal and prevented them from dismissing him.  

This is a first instance decision, so not binding in law and case each will turn on its own facts.

You can read the full judgment here.

This case update was written by Joanne Sinclair, Trainee, didlaw.