Covid and work

Was a home-working or a furlough request the main reason for a dismissal?

In Accattatis v Fortuna Group (London) Ltd the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) was wrong to reject a claim for automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996 (ERA).

The Claimant, a Sales and Project Marketing Co-ordinator, was dismissed after requesting to work from home and to be furloughed during the Covid-19 pandemic. He travelled to work by bus. During his employment he had made various complaints about his working conditions. Fortuna Group (London) Ltd makes PPE so was incredibly busy during the pandemic. Mr Accattatis worked until 30 March 2020 and then was off sick with Covid symptoms. He told his employer that he did not feel comfortable going into the office or using public transport during lockdown. He asked to work from home and then to be furloughed. 

The Respondent rejected both requests on the grounds that he could not do his job from home and did not qualify for furlough. During sick leave the Respondent terminated the Claimant’s contract with one month’s notice. Lacking two years’ qualifying service for an unfair dismissal claim the Claimant brought a claim for automatic unfair dismissal under section 100(1)(e) Employment Rights Act 1996.

The tribunal dismissed the claim and noted that the issue for consideration under section 100(1)(e) ERA was whether the reason, or principal reason for the Claimant’s dismissal was that in circumstances of danger which he reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. 

The tribunal went on to find that section 100(1)(e) ERA was not engaged despite there being circumstances of danger which the Claimant reasonably believed to be serious and imminent: he was unable to demonstrate that his request for home working or for furlough were appropriate steps to take to protect himself. The tribunal held that the principal reason for his dismissal was not the fact that he had taken, or planned to take, any appropriate steps to protect himself.

The Claimant appealed to the Employment Appeal Tribunal (EAT) arguing that the tribunal was wrong to decide that the request to work from home or to be furloughed were not ‘appropriate step(s)’ within the meaning of section 100(1)(e) ERA because they did not consider section 100(2) ERA which provides that provides whether steps which an employee took were appropriate are to be judged by reference to all of the circumstances, in particular, his knowledge and the facilities and advice available to him at the time.  The tribunal should have considered the Claimant’s understanding that colleagues had been allowed to work from home and he had been advised by HMRC that furlough was available to him.

The EAT allowed the appeal. The tribunal had found that the Claimant’s decision to stay at home and not travel to work or enter the workplace were appropriate steps. It went on to find that the request to work from home or be placed on furlough were not appropriate steps to protect himself from the reasonably perceived danger. This led the EAT to consider what the tribunal had deemed to be the reason or principal reason for the Claimant’s dismissal. The tribunal had failed to identify or explain clearly whether it was the Claimant’s request to work from home and/or be furloughed that had been the principal reason for dismissal. 

There was evidence that showed the Claimant to be a ‘difficult’ employee but, in the EAT’s view, where an employee brings a section 100 dismissal complaint, and the dismissal is found to be include a reason/reasons which embrace conduct, as long as it is within the scope of section 100 ERA, it is for the tribunal to decide whether the conduct specifically within the scope of section 100 ERA was the principal reason for dismissal.  

As for the Claimant’s request to be furloughed or to work from home being ‘an appropriate step’ for the purposes of section 100(1)(e) this is an objective question to be considered alongside section 100(2) ERA by reference to all of the circumstances of the case. The knowledge and advice available to an employee are relevant to their perception of danger and whether their conduct is judged as appropriate. 

In this case the ET had failed to consider and apply the wording of section 100(2) ERA. The case has now been remitted (sent back) to the tribunal to be heard again. The original judgment in this case was released in May 2021. It will now be at least another six months, if not longer, before the facts are reconsidered by the Tribunal. We anticipate many more such claims arising from the pandemic to be going through the employment courts in the wake of the exceptional circumstances it caused. 

This blog was written by Elizabeth McGlone, Partner at didlaw.