Employment Law Cases

COVID-19: appropriate steps in the face of serious and imminent danger

Accattatis v Fortuna Group (London) Ltd

The dismissal of an employee who’d expressed concerns about commuting during COVID-19 and who asked to be furloughed was not automatically unfair.

Background

Mr Accattatis worked for a company which sells and distributes PPE. His job entailed accepting daily deliveries, entering details onto the employer’s system and photographing/organising promotional materials. Employees were considered to be ‘key workers’ and the business remained open during the first lockdown. In March and April 2020, his requests to work from home and to be placed on furlough, due to anxiety about using public transport and working in the office, were denied due to the nature of his work, which was not possible to do from home, and the employer’s business needs. He was told he could take paid holiday leave or unpaid leave if he wished to stay at home. Mr Accattatis declined and, after further requests to be furloughed, he was dismissed. As he hadn’t worked for long enough to bring an ordinary unfair dismissal claim, he argued that his dismissal was automatically unfair under ERA, s. 100 because his workplace posed a serious and imminent danger to him.

Tribunal decision

His claim was dismissed.

The tribunal noted that the evolving nature of the crisis and lack of knowledge about the virus in the early stages made it difficult to assess, but in this instance, it was ‘prepared to accept’ that Mr Accattatis did have a reasonable belief in serious and imminent danger (notwithstanding that he appears not to have raised any concerns about lack of workplace safety measures). But that wasn’t the end of the matter. He had not taken appropriate steps to protect himself from the danger. His demands to be furloughed (which he didn’t qualify for) or working from home (which weren’t feasible) did not qualify as appropriate steps.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/3307587_2020.html

Comment

Again, this is just a first instance decision and so not binding on other tribunals. Whether the protections afforded by ERA, s. 100 will be engaged will always turn on the specific facts. Here the employee’s general feelings of unease, without more, did not help him – he’d made only vague references to his concerns about returning to work and had not explored any ways in which these might have been mitigated. It’s not enough for an employee to establish that a risk exists – he or she must be able to show that the risk is serious and imminent despite anything they and their employer can do to reduce it. See also Gibson v Lothian Leisure where an employee was successful in persuading a tribunal that his dismissal breached s. 100.