The Employment Appeal Tribunal (EAT) has considered the decision of a tribunal that the dismissal of an employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not unfair in Accattatis v Fortuna Group (London) Ltd.
The claimant worked for a company selling and distributing PPE. During March/April 2020 he repeatedly asked to work from home or be placed on furlough as he was uncomfortable using public transport and working in the office. His job could not be done from home, and Fortuna told him that although furlough was not possible because the business was so busy, he could take holiday or unpaid leave. He declined and asked three further times to be furloughed and, on the final request, was dismissed.
He claimed that he had been automatically dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA) for having taken steps to protect himself from danger. The tribunal found that he reasonably believed there were circumstances of imminent danger, but he did not take appropriate steps to protect himself from danger. His demands that he be allowed to stay at home (which Fortuna didn't object to), to work from home on full pay (his job couldn't be done from home), or be furloughed were not appropriate steps to protect himself from danger. Fortuna had reasonably concluded that his job couldn't be done from home and that he didn't qualify for furlough but had suggested he take holiday or unpaid leave thereby reasonably trying to accommodate his concerns.
The EAT found that the tribunal had failed to identify the principal reason for dismissal. The tribunal had identified three things as having had, in some sense, a bearing on the decision to dismiss namely, the desire to prevent the claimant achieving two years' qualifying service, his being perceived to be a difficult employee, and his having written impertinent emails demanding to be furloughed or to be allowed to work from home. While it was possible for there to be more than one material contributing reason for a dismissal, there could only be one principal reason.
Turning to the question of whether the steps on which an employee relied were appropriate steps for the purposes of section 100(1)(e) the EAT noted that this was an objective one. In addition the tribunal must consider any evidence regarding the employee's knowledge and the facilities and advice available to them at the time they took, or proposed to take, the steps in question. The EAT remitted the matter back to the same tribunal to decide narrow questions of whether the claimant's request to work from home or be furloughed amounted to an appropriate step and whether this request was the principal reason for his dismissal.
Meanwhile, in another recent Covid-19 case, the EAT has held in Goldstein v Herve and another that an employee who refused to attend the workplace during a lockdown during the pandemic was automatically unfairly dismissed and subjected to a detriment for raising a health and safety concern.
Ms Herve worked as a PA to Mr and Mrs Goldstein. She worked in an office within their family home. During the first lockdown she worked from home, and afterwards she attended the office once every other week. When the second lockdown started she said she would work from home full-time. She felt there was no social distancing or mask enforcement at the Goldstein's family home and she was also concerned about travelling on public transport (her partner fell into a high-risk health category). Following a disagreement about her working from home full-time Mr Goldstein emailed Ms Herve criticising her work. She resigned citing the health risks connected to her travel on public transport and while working in the office, and Mr Goldstein's email.
The tribunal upheld her claims of automatic unfair dismissal and health and safety detriment. The EAT agreed holding that she had raised circumstances connected with her work (which could include travel to and from work) which she reasonably believed were harmful or potentially harmful to health and safety. She had been subjected to detriment as a result (the criticism of her work and a failure to pay notice pay and holiday pay). Ms Herve had refused to return to the workplace at the start of the second lockdown in circumstances which she reasonably believed were serious and imminent, and the Goldstein's had breached trust by objecting to her refusal and pressing her to attend. Ms Herve's resignation had been in response to this so she had been constructively dismissed, and the dismissal was automatically unfair on health and safety grounds.
Take note: The decision in Accattatis provides details of the approach that a tribunal should take when considering whether an individual has taken steps to protect themselves against danger. Meanwhile, in Goldstein the claimant was found to have been automatically unfairly dismissed when she refused to return to work where she had raised concerns about lack of social distancing and her employers' failure to wear masks. Her belief that the danger was serious and imminent was reasonable in the context of a global pandemic, rising infections and the lack of safeguards at her workplace. These two cases show the importance of scrutinising the steps that the employee has taken to protect themselves from danger and whether they were appropriate steps to have taken.
