The Employment Tribunal has dismissed a claimant’s claim in Accattatis v Fortuna Group (London) Limited, holding that their dismissal was not automatically unfair contrary to sections 44 and 100 Employment Rights Act 1996 (“ERA96”). A dispute arose between the Claimant and their employer about the dangers of the then developing COVID-19 pandemic.
The Claimant, Francesco Accattatis, worked for the employer (“Fortuna”) as a sales and project marketing co-ordinator. Mr Accattatis worked for Fortuna from 8 May 2018 until 21 April 2020, when he was dismissed with immediate effect.
There had been tension between Mr Accattatis and Fortuna throughout his employment, with running disputes about his hours, pay, the general working environment and Mr Accattatis’ conduct in the office.
Fortuna sells produces PPE such as face masks, gels, gloves and wipes and was involved in supplying the NHS. One item of evidence submitted was a letter of commendation to Fortuna from the now former Health Secretary, Matt Hancock.
After the first national lockdown was announced on 23 March 2020, Fortuna announced to staff the following day that they would accommodate any requests not to attend work, on the basis of paid or unpaid leave; however, the business was going to stay open. Mr Accattatis asked to work from home, but this request was refused, with Fortuna noting that it was not commercially viable for them to procure remote access to the software he would use in the office. Mr Accattatis also needed to be physically present to deal with deliveries.
Mr Accattatis continued to travel to work by bus until 30 March 2020, when he developed symptoms of covid and was advised to isolate. Mr Accattatis continued to obtain isolation notes for the remainder of his employment. Whilst isolating, he asked to be placed on furlough but was refused on the basis that there was work for him to do. In reply, Mr Accattatis stated that he did not feel comfortable attending the office during the period of lockdown, and was still experiencing covid symptoms. He cited furlough as being better for him financially, and offered working from home or furlough as acceptable options.
Fortuna continued to refuse to furlough Mr Accattatis, and then dismissed him on 21 April 2020 by email, citing failure to comply with company policies and guidelines.
For those who are counting, Mr Accattatis was dismissed 17 days short of acquiring 2 years’ service and the right, in most circumstances, to bring unfair dismissal claims. Instead, he brought claims for automatic unfair dismissal under s44 and s100 ERA96, which is a day-1 right not needing any period of qualifying service. To be successful, Mr Accattatis had to establish, pursuant to s100(1)(e) ERA96 that the sole or principal reason for his dismissal was:
… 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.…
Mr Accattatis was unsuccessful. The Tribunal accepted that the employee reasonably believed the pandemic presented serious and imminent danger. However, the steps he proposed were deemed not to be appropriate steps to protect himself from the danger of the pandemic, particularly as Fortuna were prepared to allow employees to stay at home on paid or unpaid leave. Instead, the steps were primarily to protect his personal financial position.
Further, Mr Accattatis failed to show that these steps were to sole or principal reason for his dismissal. The ET actually found that Fortuna dismissed him as they did not want him to achieve two years’ service and the consequent protections for unfair dismissal.
This is a first instance decision and does not set precedent but it is instructive as to the possible approach of the Tribunal to claims under s100 ERA96. In this instance, the Claimant was very much undermined by noting that his preferred options (of furlough or of working from home) were being requested so that he could pay his bills and whilst there was concern about his health and safety, this was not the primary motivator.
Also notable is the employer’s discretion to decide whether or not to place an employee on furlough. The employee can (and many have), suggested furlough, but it is up to the employer to assess and decide whether this is required.
The employer seemed to freely admit that the dismissal was in order to avoid Mr Accattatis attaining two years’ service. Employers should be mindful that there is a limited protection offered to employees in this situation under s97 (2) ERA96, which adds one week to an employee’s qualifying notice period, if they are dismissed without notice, and the one week would have carried them over 2 years’ service. Having the right to pay notice in lieu would also be advisable. However, there are other claims that are a day -1 right, so remember that having less than 2 -years’ service will not always avoid a claim.
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