In one of the first Covid-19 employment law cases, the Employment Tribunal in Accattatis v Fortuna Group (London) Limited ruled in favour of the employer. The case involved the dismissal of an employee who raised concerns about attending work premises and travelling to work on public transport during the Covid-19 lockdown. The full tribunal judgment is available here.
The background of the case – Accattatis v Fortuna Group (London) Limited
Accattatis was employed by Fortuna Group (London) Ltd as a Sales and Project Marketing Co-Ordinator, starting on 8 May 2018. Fortuna remained open during the COVID-19 lockdown as the company sells and distributes PPE. As a result, employees were considered to be ‘key workers’.
In March 2020, as the pandemic emerged, Accattatis became concerned about catching COVID-19. He initially requested to work from home. However, his employer declined the request on the basis that it was not possible for him to perform his work from home as the software he used was not available remotely. Furthermore, Accattatis’ role required him to be on work premises to deal with deliveries on a daily basis. Instead, his employer offered the option of taking time off work, either as annual leave or unpaid leave, which Accattatis declined.
During a period of sickness absence due to COVID-19 symptoms, Accattatis stated that he did not feel comfortable returning to work, or travelling on public transport. He requested to be placed on furlough leave. The request was declined as the criteria for the furlough scheme had not been met, i.e. the business remained open, and there continued to be work available for Accattatis to perform. He remained on sick leave and made several further requests to either be allowed to work from home or to be placed on furlough leave.
On 21st April 2020, Accattatis was dismissed with one month’s pay in lieu of notice for failure to comply with company policies and guidelines.
The nature of the claim
With less less than two years’ qualifying service, Accattatis was unable to bring an ‘ordinary’ unfair dismissal claim. Instead, he made a claim of ‘automatically’ unfair dismissal under Section 100(1)(e) of the Employment Relations Act. All employees (regardless of length of service) can bring an ‘automatically’ unfair dismissal claim if the employee can show that the principal reason for their dismissal was 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 the danger”.
This legal protection was drafted with extreme safety emergencies in mind. It has been unclear whether Employment Tribunals would apply this statutory right to the risk of COVID-19.
The Employment Tribunal Ruling
The Employment Tribunal applied the two stage test outlined in Oudahar v Esporta Group Limited, ie:
- Have the criteria for Section 100(1)(e) been met: were there circumstances of danger that the employee reasonably believed to be serious or imminent? Did the employee take (or propose to take) appropriate steps to protect himself or other persons from the danger?
- Was the employer’s sole or principal reason for dismissal that the employee took or proposed to take appropriate steps?
The Employment Tribunal accepted that Accattatis reasonably believed he was in serious and imminent danger.
In reaching this conclusion the Employment Tribunal relied upon a government announcement on 14th February 2020 which stated that ‘the incidence or transmission of novel Coronavirus constitutes a serious and imminent threat to public health’.
However, the Employment Tribunal was of the view that the employer had ‘reasonably and justifiably concluded that the claimant could not work from home [due to the nature of his role] and he did not qualify for the furlough scheme’.
The Tribunal found that the employee, in declining the company’s offer of taking annual leave or unpaid leave, failed to take appropriate steps to protect himself from the danger. The claimant not only wanted to stay at home, but wanted to earn either full pay (by working from home) or 80% pay (on furlough leave). The claimant therefore did not meet the criteria for Section 100(1)(e).
Furthermore, the Tribunal found that the principal reason for the dismissal was to avoid the claimant (a ‘challenging employee’) achieving two years’ qualifying service and protection from ordinary unfair dismissal, rather than as a result of the steps he had taken to protect himself from Covid-19.
The claimant’s claim of automatically unfair dismissal was therefore dismissed.
What does this ruling mean for my business?
While the ruling in Accattatis v Fortuna Group is a promising sign for businesses concerned about employment law risks associated with the pandemic, employers should keep in mind that the claimant in this case did not have two years’ qualifying service, and therefore could not bring a claim for ordinary unfair dismissal. Similarly the claimant did not have grounds to bring a discrimination claim under the Equality Act. Employers should also be aware that this is a first instance decision, which means that it is not binding on other tribunals.
Nevertheless, Accattatis v Fortuna Group does provide some important learnings for employers. It indicates that employees are unlikely to be able to refuse to attend work for COVID-19 reasons, without clearly setting out their concerns to their employers, and fully exploring alternative options to reduce risk levels.
This case shows the importance of treating employees’ concerns seriously, and taking reasonable steps to reduce the risk of COVID-19. Where an employee is concerned about attending work, employers are advised to:
- Meet with the employee and genuinely listen to their concerns;
- Consider what support can be offered;
- Make your employee aware of the steps you have taken to ensure a COVID-19 secure workplace;
- Review whether safety measures need to be updated or changed;
- Explore alternative options with the employee, such as: homeworking; sick leave (where appropriate); time off as annual leave or unpaid leave; temporary changes to job role, job location or shift pattern;
- Bear in mind that if an employee is classed as ‘clinically vulnerable’ to COVID-19, then they may meet the definition of disabled under the Equality Act 2010. The Equality Act places a legal obligation on employers to make reasonable adjustments for disabled employees.
For further advice on managing employees who are unwilling to return to the office, please read our guide ‘Hybrid working: returning to the office following the Covid-19 pandemic’
If you have a HR issue related, contact our team for HR support and advice
