As we emerge from the depths of a pandemic, tribunals are observing an increasing number of claims brought pursuant to Section 100(1)(e) of the Employment Rights Act 1996 (ERA). Section 100(1)(e) ERA protects employees from being unfairly dismissed where the employee, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger. Any dismissal which arises as a result of these steps taken by the employee will be automatically unfair.
In Accattatis v Fortuna Group (London) Limited, the Claimant was employed by the Respondent, a company which sells and distributes PPE. Throughout March and April 2020, the Claimant repeatedly asked to work from home or be placed on furlough, explaining that he was uncomfortable using public transport and working in the office due to the risks associated with Covid-19.
The Respondent refused the Claimant’s requests, explaining that the nature of the Claimant’s job precluded an effective working from home arrangement, and that the significant increase in business undermined his eligibility to be placed on furlough as there was no reduction in his work. The Respondent offered that the Claimant could take annual leave or unpaid leave so that he could stay at home. The Claimant refused both options. After the Claimant’s final request on 21 April 2020, he was dismissed by email the same day.
The Claimant did not have the requisite qualifying service to bring a claim for ordinary unfair dismissal and therefore sought to rely on automatic unfair dismissal pursuant to S.100(1)(e) ERA.
Case law dictates that the tribunal must adopt a two-stage test when considering such claims, asking: -
Were there circumstances of danger that the employee reasonably believed to be serious and imminent?
Did the employee take or propose to take appropriate steps to protect themselves or other persons from the danger?
Was the employer's sole or principal reason for dismissing the employee due to the employee taking or proposing to take those steps?
The tribunal agreed that Covid-19 presented circumstances of danger which, subjectively, the Claimant reasonably believed to be serious and imminent.
The appropriate steps that the Claimant took to protect himself from the danger in this case were to remain at home and not travel on public transport. Those steps had always been allowed by the Respondent, either through paid holiday or unpaid leave. The tribunal however found that the Respondent was justified in concluding that the Claimant could not work from home or be furloughed, therefore the Claimant’s further demands, for full pay or furlough, were not appropriate steps to protect him from the danger. Section 100(1)(e) was subsequently not engaged and the claim was dismissed.
Interestingly, the Judgment proceeded to consider the Respondent’s reasoning for dismissal, finding that it was to prevent the Claimant achieving two years’ qualifying service and as a result of his challenging and difficult behaviour. The claim would therefore have fallen at the second hurdle regardless.
This case is not binding on other tribunals yet offers valuable insight as to how tribunals are interpreting claims under s.100(1)(e) within the context of the Coronavirus pandemic. The position is nuanced, evolving and each case will turn on its own facts. However, employers should take confidence from this ruling, keeping in mind that employees cannot reign supreme by citing the threat of Coronavirus as reason not to attend work.