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COVID-19: another Tribunal win for employer as the trend continues

Employee who refused to attend work due to Covid, demanding furlough, loses Tribunal claim

Andrew Collier
Andrew Collier HR Adviser
In the latest of a series of Employment Tribunal judgments concerning employee claims that flow from Covid-19 issues  (such claims brought following Lockdown 1.0 now increasingly making their way through the system) we have again seen how the judiciary are appearing reluctant to extend much sympathy to the plight of the employees.

In Accattatis v Fortuna Group (London) Ltd the Employment Tribunal found that an employee who said he felt uncomfortable commuting and attending the office during lockdown and asked to be furloughed was not automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996).
Mr Accattatis worked for Fortuna Group (London) Ltd, a company which sells and distributes PPE. During March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough, explaining that he was uncomfortable using public transport and working in the office.  He had also suffered a Covid-19 scare himself and had a period of necessary self-isolation.  Fortuna told Mr Accattatis that his job could not be done from home, and that furlough was not possible because the business was so busy, but that he could instead take holiday or unpaid leave if he wishes to delay his return to work. Mr Accattatis declined and asked three more times to be furloughed, citing advice that HMRC had given him that he was eligible for furlough. After the final request on 21 April 2020 was sent by Mr Accattatis to be furloughed rather than return to work, he was dismissed by email the same day.
Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal. He instead alleged he had been automatically unfairly dismissed under section 100(1)(e) of the ERA 1996 for having taken steps to protect himself from danger.  The Employment Tribunal concluded that the government had announced on 14 February 2020 that COVID-19 posed a serious and imminent threat to public health. This, together with Mr Accattatis' emails expressing concern about commuting and attending the office, showed he reasonably believed there were circumstances of serious and imminent danger. 
However, it was a requirement under section 100(1)(e) for Mr Accattitis to have taken appropriate steps to protect himself from danger or to have communicated the circumstances of danger to his employer.  In this case, the employer had reasonably concluded that Mr Accattatis' job could not be done from home and that he did not qualify for furlough (as the business was very busy) but had instead suggested taking holiday or unpaid leave to give him more time away from the workplace. Mr Accattatis' response was not only that he wanted to stay at home (which was agreed by the employer - albeit on an unpaid basis if holiday not taken), but also to demand that he be allowed to work from home (on full pay) or be furloughed (on 80% of pay). These demands were not appropriate steps to protect himself from danger but were simply to advance his own financial position (to the detriment of his employer's financial position), so his claim failed.
Although every case that comes before the Employment Tribunals is fact specific, this case is another  reminder that the pandemic may not on its own justify a refusal to attend work under section 100(1)(e) if employers have reasonably tried to accommodate employees' concerns and reduce transmission risk - and operated in line with the government advice in force at the time.

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