Last reviewed 21 July 2022

The employment tribunal has given judgment in a case involving the dismissal of a worker who was concerned about attending work premises and using public transport during the coronavirus lockdown. Robert Spicer reports on the recent case of Accattatis v Fortuna Group (London) Ltd (2021).

Personal protective equipment

Mr Accattatis (A), was employed in 2018 by FG Ltd as a sales and project marketing co-ordinator. The company is engaged in the sale and distribution of personal protective equipment (PPE). It remained open during the pandemic and employees were regarded as key workers.

In March 2020, at the start of the pandemic, A was concerned that he might catch coronavirus. He asked to work at home. FG Ltd refused this request because the software used by A was not available remotely. Also, A’s role needed him to be onsite to deal with deliveries each day. The company offered A the option of taking time off work. A did not accept this offer.

A went off sick, suffering from coronavirus symptoms. He told his employer that he did not feel confident about returning to work or travelling on public transport. He asked to be placed on furlough. This request was refused because the criteria for the furlough scheme was not met: the business was open and work was available for A. He remained on sick leave and made further requests to work at home or to be placed on furlough.

In April 2020 A was dismissed for failure to comply with FG Ltd’s policies and guidelines. He had less than two years’ continuous service and could not complain of ordinary unfair dismissal. He claimed automatic unfair dismissal under s.100(1) of the Employment Rights Act 1996 on the basis that the principal reason for his dismissal was that in circumstances of danger which he reasonably believed to be serious and imminent, he took appropriate steps to protect himself or other persons from danger.

The employment tribunal dismissed the complaint. It made the following points:

  • Were there circumstances of danger which the employee reasonably believed to be serious or imminent?

  • Did the employee take or propose to take appropriate steps to protect himself or other persons from the danger?

  • Was the employer’s sole or principal reason for dismissal that the employee took or proposed to take appropriate steps?

  • It accepted that A reasonably believed that he was in serious and imminent danger. It accepted that the incidence or transmission of coronavirus constituted a serious and imminent threat to public health.

  • However, the employer had reasonably and justifiably concluded that A could not work from home because of the nature of his work and that he did not qualify for the furlough scheme.

  • A’s refusal to take time off work meant that he had failed to take appropriate steps to protect himself from danger. He sought either full pay or 80 per cent pay on furlough leave.

  • The principal reason for the dismissal was to avoid A reaching two years’ continuous employment and protection from unfair dismissal, rather than as a result of his actions to protect himself from coronavirus.

Employers need to be aware that this is a first instance decision which is not binding on other tribunals. The decision suggests that workers are unlikely to be able to refuse to attend work for Covid-19 reasons unless they clearly set out their concerns to their employers and fully explore alternative ways of reducing risk levels.

Section 100 of the 1996 Act states that the reasonableness of the employee’s actions will be judged by reference to all the circumstances, including the employer’s knowledge and the facilities and advice available to the employee at the time. It is not relevant whether or not there was actual serious and imminent danger or whether the worker believed that there was. The key point is that the worker reasonably believed in the existence of danger. Employment tribunal cases on the application of s.100 include the following:

  • Dismissal for refusal to drive defective vehicles.

  • Dismissal of a young female worker for refusing to take rubbish at night to an isolated rubbish dump.

  • A chef who was dismissed for refusing to cook food which he considered as unfit for human consumption.

  • Dangers of violence from colleagues.

Employers are advised to take the following general steps.

  • Hold meetings with workers and listen to their concerns.

  • Consider types of support which can be offered.

  • Make workers aware of measures implemented to ensure a Covid-19 secure workplace.

  • Regularly review whether health and safety measures should be updated.

  • Consider alternative options, for example homeworking, sickness leave, time off as annual leave or temporary changes to work roles.