Case update: Employee’s dismissal because he was concerned about commuting and attending office during lockdown was not automatically unfair.

A number of cases involving COVID-related dismissals are now emerging from the tribunals. One such case is Accattatis v Fortuna Group (London) Ltd. 

In this case, during the early period of lockdown in March/April 2020, the claimant asked to work from home or to be furloughed, because he said that he was not comfortable using public transport or working in the office. The respondent told the claimant that his job could not be done from home and that furlough was not an option because the business was busy. The claimant was offered the opportunity to take holiday or unpaid leave instead, which the claimant rejected. After several more unsuccessful requests to be furloughed towards the end of April 2020, the claimant was dismissed.

The claimant alleged that he had been automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 for having taken steps to protect himself from danger. This law essentially protects employees from being unfairly dismissed “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”.

During the case, the tribunal noted that the government had announced in February 2020 that COVID posed a serious and imminent threat to public health. In conjunction with the various emails from the claimant in which he raised concerns about commuting and attending the office, this demonstrated (in the tribunal’s view) that he reasonably believed there were circumstances of “serious and imminent danger”.

However, the tribunal also concluded that it was a requirement of section 100(1)(e) of the Employment Rights Act 1996 for the claimant to have taken “appropriate steps to protect himself from danger”.

As part of the judgement, the tribunal decided that the respondent had reasonably concluded that the claimant’s job could not be done from home and that because furlough was not an appropriate option it had suggested that the claimant could take holiday or unpaid leave. The tribunal concluded that the claimant’s response that he wanted to stay at home (either working or on furlough) were not (under the circumstances) appropriate steps to protect himself from danger. As such, his claim of automatic unfair dismissal failed.

It should be noted that this is only a decision of an employment tribunal and is therefore not binding on other tribunals. Nevertheless, it is a useful case for employers who can demonstrate attempts to reasonably accommodate employees’ concerns arising as a result of COVID.