Mr Accattatis worked for Fortuna, which sells and distributes PPE. During March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough, because he was uncomfortable using public transport and working in the office. Fortuna told him his job could not be done from home, and he could not be furloughed because the business was so busy – but he could take holiday or unpaid leave instead. Mr Accattatis declined and repeated his request for furlough three more times, prompting Fortuna to dismiss him by email the same day his final request was made.
Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal and instead alleged he had been automatically unfairly dismissed for having taken steps to protect himself from danger. Employees are granted protection from dismissal where there are legitimate health and safety concerns – they may be entitled to claim unfair dismissal where they have left work or refuse to return to work and/or have taken appropriate steps to protect themselves and/or others from a situation which they reasonably believed posed a “serious and imminent danger” and could not be avoided.
The tribunal noted that the government had announced that Covid posed a serious and imminent threat to public health and that Mr Accattatis had expressed concerns about commuting and attending the office, which showed he reasonably believed there were circumstances of serious and imminent danger. However, to be afforded protection from automatic unfair dismissal, Mr Accattitis had to show he had taken appropriate steps to protect himself from danger or had communicated the circumstances of danger to Fortuna.
Fortuna had reasonably concluded that his job could not be done from home and that Mr Accattatis did not qualify for furlough but had instead suggested taking holiday or unpaid leave. Mr Accattatis’ response was not only that he wanted to stay at home (which was agreed), but also to demand that he be allowed to work from home or be furloughed. Given that these demands were not appropriate steps to protect him from danger, his claim failed.
Key Action Points for Human Resources and In-house Counsel
The claimant had less than two years’ service so had to claim protection from dismissal for refusal to work on health and safety grounds. However, employees with more than two years’ service could also claim ordinary unfair dismissal, and that may have resulted in a different outcome here.
It is worth noting that the law also protects employees (and more recently due to a change in the law, workers too) from suffering a detriment, such as withholding pay, where they refuse to attend work due to a reasonable belief they are in serious and imminent danger.