Employer that sold PPE may be liable to pay damages after dismissing an employee who demanded to work from home during the COVID-19 pandemic

15 March 2024

In Accattatis v Fortuna Group (London) Ltd, the EAT has held that an employment tribunal erred in rejecting a claim for automatic unfair dismissal under S.100(1)(e) of the Employment Rights Act 1996.

S.100(1)(e) says that an employee will be regarded as unfairly dismissed if the principal reason for the dismissal is 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 from the danger.

In the present case, the employee identified serious and imminent danger arising from the COVID-19 pandemic and the step he took to protect himself was to issue a demand that he be allowed to work from home or else be furloughed.

The tribunal below correctly found that the claimant reasonably believed that the COVID-19 pandemic gave rise to circumstances of serious and imminent danger. However, the EAT found it had erred in deciding that the claimant’s demand to work from home / be furloughed was not an ‘appropriate step’ to protect himself within the meaning of S.100(1)(e).

In deciding the appropriateness of steps taken by an employee to avert danger, the tribunal was required to apply S.100(2) and consider all the circumstances, including the employee’s knowledge, and the facilities and advice available to him at the time.

Furthermore, the tribunal failed to determine the reason, or principal reason, for the claimant’s dismissal and, in particular, whether it was the claimant’s conduct in making the demand. The claim was remitted to the tribunal for reconsideration.

Transcript: https://assets.caselaw.nationalarchives.gov.uk/eat/2024/25/eat_2024_25.pdf


Daniel Hobbs

Call 1998

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