Dismissal of employee who had concerns about returning to the office was not unfair


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An employment tribunal has held in Accattatis v Fortuna Group (London) Ltd that the dismissal of an employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not unfair.

The claimant worked for a company selling and distributing PPE.  During last March/April he repeatedly asked to work from home or be placed on furlough as he was uncomfortable using public transport and working in the office.  His job could not be done from home, and Fortuna told him that although furlough was not possible because the business was so busy, he could take holiday or unpaid leave.  He declined and asked three further times to be furloughed and, on the final request, was dismissed.  

He claimed that he had been automatically dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA) for having taken steps to protect himself from danger.  The tribunal found that he reasonably believed there were circumstances of imminent danger, but he did not take appropriate steps to protect himself from danger.  His demands that he be allowed to stay at home (which Fortuna didn't object to), to work from home on full pay (his job couldn't be done from home), or be furloughed were not appropriate steps to protect himself from danger.  Fortuna had reasonably concluded that his job couldn't be done from home and that he didn't qualify for furlough but had suggested he take holiday or unpaid leave thereby reasonably trying to accommodate his concerns. 

Take note:  The decision in Accattatis shows that, provided that an employer has tried to reduce risk of Covid-19 transmission, and listened to and tried to accommodate an employee's concerns, a refusal to attend work under section 100(1)(e) ERA will not be justified.

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