"His refusal to take unpaid leave or holiday, and his demands for home working on full pay or furlough on 80 per cent pay, were not appropriate steps to protect himself from danger. His claim failed."
The employment tribunals have handed down more judgments this month in relation to Covid-19 related dismissals. In Accattatis v Fortuna Group, the employee worked for a company which sold PPE. In March and April 2020, he told his employer he was uncomfortable travelling on public transport and working in the office. He repeatedly asked to either work from home or be furloughed. The employer said the business was too busy for furlough and the job couldn’t be done at home. However, they said he could take holiday or unpaid leave. The employee refused, and when he continued making the same requests, he was dismissed.
The employee did not have enough continuous service to bring an ordinary unfair dismissal claim. He brought a claim for automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996, saying he was dismissed for taking appropriate steps to protect himself from serious and imminent danger. The tribunal said that the serious and imminent threat posed by the virus had been confirmed by the government in February 2020. Together with the employee’s emails expressing his fears about commuting and office work, he had demonstrated a reasonable belief that he was in serious or imminent danger. However, the employer had reasonably concluded that his job could not be done at home. He did not qualify for furlough because the business was so busy. The employer had offered alternative ways for him to stay at home. His refusal to take unpaid leave or holiday, and his demands for home working on full pay or furlough on 80 per cent pay, were not appropriate steps to protect himself from danger. His claim failed.
This judgment isn’t binding on other courts but it does emphasise that the pandemic and its associated dangers will not necessarily justify a refusal to work. However, employers must behave reasonably in all aspects of a dismissal. This means taking reasonable steps to accommodate and manage employees’ concerns and reduce the risk of transmission in the workplace. Taking such steps, as the employer did in this case, significantly reduces the risk of a successful unfair dismissal claim.