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Accattatis v Fortuna Group (London) Ltd

A tribunal wrongly rejected a claim for automatic unfair dismissal brought by an employee who was dismissed after demanding to be allowed to work from home and be furloughed during the COVID-19 pandemic.

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.

A tribunal dismissed his claim. It 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 the tribunal 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. Mr Accattatis appealed.

EAT decision

The appeal was allowed and remitted to the same tribunal for reconsideration.

As to whether Mr Accattatis’ demand to be furloughed/allowed to work from home was an ‘appropriate step’, this was an objective question which required the tribunal to form its own view having regard to all the circumstances of the case. While the test is objective, the law (ERA 1996, s. 100(2)) requires the tribunal in every case to consider any evidence regarding the employee’s knowledge and the facilities and the advice available to him at the time he proposed to take the steps in question (this included Mr Accattatis’ knowing that some employees were allowed to work from home) – the tribunal’s attention had not been specifically drawn to this.

In addition, the tribunal had been unclear about what the principal reason for Mr Accattatis’ dismissal actually was. It had referred to principal reasons (in the plural) but the starting point in the legislation is that there can only be one principal reason. This was central to whether Mr Accattatis’ claim could succeed as the protected conduct here (his demands for hybrid working and/or furlough) had to be the principal reason why he was dismissed. The EAT held that the tribunal had failed to evaluate this.

Comment

Whether the protections afforded by ERA, s. 100 will be engaged will always turn on the specific facts and here the EAT is saying that the tribunal has not properly considered the matters it is required to consider; it is not accepting that the claimant was automatically unfairly dismissed. The tribunal had found that 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 must now consider these points and decide if, bearing in mind its findings of fact, they will change their mind.

See Gibson v Lothian Leisure where an employee was successful in persuading a tribunal that his dismissal breached s. 100.