Employment Law Case Update: Furlough Leave and Unfair Automatic Dismissal

Furlough leave has certainly been a learning curve both employers and employees alike and we are beginning to see the Employment Tribunal rule on certain issues.  Today, our Employment Law team review the case of Mr Francesco Accattatis v Fortuna Group (London) Limited 2021 and his multiple attempts to get furloughed due to Covid-19 fears ending in dismissal.

Mr Accattatis worked for his employer, a company that sells and distributes PPE, from May 2018 until his dismissal in April 2020.

Shortly after the national lockdown was announced in March 2020, Mr Accattatis asked his line manager about the possibility of working from home, but was told this was not possible because many of his duties required him to be present at the workplace. The position of the company was that employees could self-isolate, but only by taking paid annual leave or unpaid leave.

On 30 March, Mr Accattatis began to experience coronavirus-like symptoms and consequently self-isolated. He was paid sick pay according to his contract of employment and remained on sick leave into April. While on sick leave, he emailed the managing director, Mr Bavetta, a letter of agreement to temporarily place him on furlough, calling it a “win-win,” because he would earn more while the company saved money. His request was rejected, with Mr Bavetta saying that there remained work for Mr Accattatis to perform and that they expected his “immediate return to work”.

Mr Accattatis replied that as he was still experiencing symptoms, he was unable to return to work and that at any rate, he was not comfortable using public transportation to get to work (he took the bus and did not have access to a car). He requested again that he either be allowed to work from home or be placed on furlough. Mr Bavetta replied that furlough was not an option while Mr Accattatis’ job was still active.

Mr Accattatis sent a couple more emails asking Mr Bavetta to reconsider the furlough position. Subsequently, on 21 April Mr Accattatis was informed that he was being dismissed for a “general ongoing failure of your part over a period of many months to support and comply fully with our company policies and guidelines”.

As Mr Accattatis had less than two years’ service, he was unable to bring a claim for ordinary unfair dismissal. Instead, he brought a claim against the company for automatically unfair dismissal under section 100 of the Employment Rights Act 1996. Under section 100 of the ERA, a dismissal will be automatically unfair where the reason or principle reason for the dismissal was that the employee took, or proposed to take, steps to protect themselves or others from a danger which they reasonably believed to be serious and imminent.

Judge Alliott accepted that Mr Accattatis reasonably believed the spread of Covid-19 presented a serious and imminent danger. However, he found that Mr Accattatis’ demands to either work from home or be placed on furlough were not “appropriate steps” because he could not feasibly work from home and he was not eligible for the furlough scheme. The protection afforded by section 100 of the ERA was therefore not engaged and Mr Accattatis’ claim for unfair dismissal failed.

This case is not binding on future tribunals but does contribute to an emerging case law revealing how tribunals will handle employment claims relating to health and safety during the pandemic. This case indicates that employees may need to show more than just a general anxiety about being in the workplace to gain protection from unfair dismissal under section 100 of the ERA. Employees must be able to point to specific dangers and show how the risk to health and safety is serious and imminent despite any steps taken by the employer to reduce the danger.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.