Refusal to furlough was not unfair

An Employment Tribunal was recently required to consider whether an employee who raised health and safety concerns and said that he did not want to commute into or attend his workplace during lockdown was unfairly dismissed as a result. The decision shows that by taking a considered approach to employee concerns, employers can avoid successful unfair dismissal claims being made against them.

What were the facts?

In the case of Accattatis v Fortuna Group (London) Limited the employee, Mr Accattatis, worked as a Sales and Project Marketing Co-ordinator for his employer, which sold and distributed PPE. The context of the case was the coronavirus pandemic during the first wave of infections.

On 23 March 2020, the Prime Minister told the country that people ‘must’ stay at home and certain businesses must close, other than those delivering vital key services. The employer kept its business running to help deliver supplies of PPE.

Following Mr Accattatis having had time off due to experiencing Covid symptoms, he contacted his employer to say that instead of returning to the workplace, he wanted to either work from home or be put on furlough, because he did not feel safe using public transport or coming into the workplace.

The employer said his role could not be done from home and that the business was too busy to justify putting Mr Accattatis onto furlough, as there was plenty of work for him to do. An offer was made to all staff that they could take annual leave, or unpaid leave, but Mr Accattatis did not agree to this. Mr Accattatis was dismissed in April 2020 after repeating the request to his employer.

Applying the law

As Mr Accattatis had under two years’ service, he was not eligible to bring an ordinary unfair dismissal claim. Therefore, he sought to prove under section 100(1)(e) Employment Rights Act 1996, that the reason (or principal reason) for his dismissal was that:

“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”.

The Employment Judge accepted that Mr Accattatis reasonably believed there were circumstances of serious and imminent danger, both in the workplace and on his journey to work. However, they said he had not discussed the detail of the concerns he had with his employer and had not taken appropriate steps to avoid the danger.

The Employment Judge agreed that Mr Accattatis had duties which could not be done from home, that in March/April 2020 the company was very busy due to significant demand for PPE, and that it would not have been an appropriate step to put Mr Accattatis on furlough. Therefore, these steps had not been appropriate suggestions by Mr Accattatis to avoid the danger. There had been no attempt by Mr Accattatis to raise or discuss other ways to lessen the risk to health and safety.

The Employment Judge also concluded that the dismissal had been due to the employer considering Mr Accattatis a ‘challenging employee’, who had previously made ongoing complaints, and had written impertinently worded e-mails demanding to be furloughed or to work from home. The employer had ended the employment when it did to avoid Mr Accattatis gaining 2 years’ service, and therefore protection from ordinary unfair dismissal (which has a different legal standard of proof), rather than because Mr Accattatis was reluctant to come into work or use public transport.

Conclusion

The decision in this case is Tribunal level only, and therefore not binding on other Employment Tribunals. Inevitably it is based on the specific facts presented. It does show, however, that employees are unlikely to be able to refuse to attend work due to pandemic-related health and safety concerns, without clearly setting out what their concerns are to their employers. They will also need to consider and discuss with their employer any reasons why they feel that the steps that an employer has taken to address risk, are insufficient and/or not reasonable. This allows employers the chance to reflect on their measures and risk assessments and offer reassurance to employees.

If you have any employees who have raised concerns and you are not sure what to do next, we would be happy to discuss these with you.