An employment tribunal has found that an employee who claimed to have felt uncomfortable commuting to and attending the office during lockdown and requested to be furloughed was not automatically unfairly dismissed under the Employment Rights Act 1996, section 100(1)(e).

Dismissed by email after repeatedly asking for furlough

Mr Accattatis was employed by Personal Protective Equipment (PPE) seller and distributor Fortuna Group (London) Ltd. On multiple occasions during March and April 2020, he asked to be permitted to work from home or be placed on furlough, reasoning that he wasn’t comfortable using public transport and working in the office.

He was told by Fortuna that it was not possible for his job to be done from home, and that the business was too busy to be able to furlough him. The company instead gave him the option of taking holiday or unpaid leave.

After turning down this offer, Mr Accattatis made three more requests to be furloughed. After he asked for the final time on 21 April 2020, he was dismissed by email later that day.

An instructive case for employers and employees during the COVID-19 crisis

As Mr Accattatis did not have enough service to claim ordinary unfair dismissal, he instead alleged that he had been subject to automatic unfair dismissal under section 100(1)(e) of the aforementioned Act for having taken steps to protect himself from danger.

The tribunal noted the government’s statement on 14 February 2020 that COVID-19 represented a serious and imminent threat to public health. This, along with emails from Mr Accattatis voicing concern about commuting to and attending the office, showed his reasonable belief that there were circumstances of serious and imminent danger.

However, the referenced section of the Act also included a requirement for Mr Accattatis to have taken appropriate steps to shield himself from danger or to have communicated the circumstances of danger to his employer. Fortuna had reached the reasonable conclusion that Mr Accattatis’s job could not be done from home and that he did not qualify for furlough, but had instead proposed the option to him of taking holiday or unpaid leave.

In response, Mr Accattatis not only requested that he be able to stay at home – which was agreed – but also demanded to be permitted to work from home on full pay or be furloughed on 80% of pay. As these demands were not appropriate steps to shield himself from danger, his claim was unsuccessful.

The tribunal outcome was not binding, but nonetheless serves as a reminder that the pandemic, in isolation, may not be sufficient to warrant a refusal to work under section 100(1)(e) of the 1996 Act, if employers have reasonably attempted to accommodate the concerns of their workers and lower the risk of transmission.

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June 2021