Automatically unfair dismissal claims in light of the COVID-19 pandemic

Mr. Accattatis was employed by Fortuna Group as a Sales and Project Co-Ordinator. His employment commenced on 08 May 2018. The company sold and distributed PPE and, as such, staff were classed as key workers at the outset of the pandemic and during the first lockdown. The company, therefore, remained open and operational.

Prior to the onset of the COVID-19 pandemic, the claimant had raised a number of concerns and complaints during his employment with the company, including complaints about low salary and excessive working hours.

At the outset of the COVID-19 pandemic in March 2020, Fortuna Group took the preventative steps advised by the Government; the staff were asked to socially distance and good hygiene practice was actively promoted, with hand sanitiser being provided at a number of locations across the workplace.

The claimant developed COVID-19 symptoms on 30 March 2020 and self-isolated accordingly. He wrote to his manager asking if he could be furloughed. He argued that this would be a “win-win” for him and the company but given the high demand for PPE at the time, the company felt that he was needed at work and so asked him to return as soon as he was fit enough and able to do so. They pointed out that the Government’s Coronavirus Job Retention Scheme (CJRS) was set up to support companies to continue paying employees who would otherwise be made redundant or be placed on enforced unpaid leave. That was not the case for Fortuna Group. Those employees who wanted to stay at home were welcome to do so, but would either be required to use paid annual leave or otherwise go unpaid whilst not at work.

The claimant responded to the company to state that he did not feel comfortable with the idea of using public transport and coming into the office during lockdown. He asked to work from home or to be placed on furlough. The respondent’s position was that, due to the nature of his work, it would not be feasible for him to work from home. The claimant was required to be at work to deal with deliveries, which were now coming on a daily basis due to the pandemic. He also had to use specific software to complete his work which could not be accessed from his home.

The claimant asked again to be allowed to work from home or be placed on furlough on a further two separate occasions, the last being on 21 April 2020. Later that same day, he was dismissed with immediate effect. The reason given by the respondent was the claimant’s “general ongoing failure… over a period of many months to support and comply fully with company policies and guidelines.”

Mr. Accattatis had less than two years’ service with the company and as such was unable to bring a claim for unfair dismissal. He sought to argue, however, that his dismissal was automatically unfair under section 100 of the Employment Rights Act 1996.

In order for a claim for automatically unfair dismissal under section 100(1)(e) ERA to succeed, an employee must establish that they were dismissed because they were in circumstances of danger, which they reasonably believed to be serious and imminent, and they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.

In this particular case the tribunal found:

• There were circumstances of danger which an employee could reasonably have believed to be serious and imminent, given the Government announcement in February that the transmission of COVID-19 constituted a serious and imminent threat to public health.
• Subjectively, the claimant reasonably believed the danger to be serious or imminent. The fact that he had explored home working and said he did not feel comfortable using public transport demonstrated this.
• However, the claimant did not take ‘appropriate steps’ to protect himself or others. The respondent allowed staff to ‘isolate’ away from work by taking paid annual leave or unpaid leave. It was not appropriate for the claimant to work from home, nor for the respondent to make use of the furlough scheme in those particular circumstances, and the claimant’s demands for such action were not appropriate steps to protect him from danger.
• Even if the claimant had taken ‘appropriate steps’, the sole or principal reason for dismissal was not that the claimant took or proposed to take those appropriate steps. Instead, the tribunal found that a significant reason for the dismissal was to prevent the claimant from achieving two years’ qualifying service. The tribunal found that the respondent believed the claimant to be a difficult and challenging employee and that this was the real reason for his dismissal.

Mr. Accattatis’ claim for automatically unfair dismissal was, therefore, dismissed.

We are starting to see an increasing number of cases coming through the tribunal system and, whilst these decisions are in no way binding on any other tribunals, they offer an insight into how key employment matters will be dealt with in light of the pandemic.

In the particular case of s.100(1)(e) automatically unfair dismissal claims, it is clear that workers will need to clearly explain why they believe their workplace (or even their commute to work) is dangerous in order to benefit from the protections of s100 ERA. Mr. Accattatis made only vague references to feeling uncomfortable and did not explicitly state that he was refusing to attend work to protect himself. Workers will also need to give full consideration to what might be classed as appropriate steps, even if they might not be attractive to the worker (by, for instance, taking agreed unpaid leave).

What is also interesting to note from this decision is that Mr. Accattatis was dismissed some 17 days before he would have gained two years’ service which would have then allowed him to bring an ordinary unfair dismissal claim. Employers need to be conscious of the fact that where they dismiss an employee with a payment in lieu of notice (PILON), prior to them gaining two years’ service, a week will be added to the effective date of dismissal, which may then push the employee over the service threshold required for an unfair dismissal claim. Here, if Mr. Accattatis had been dismissed with PILON between 01 and 07 May 2020, he would have then had the required service to bring an ordinary unfair dismissal claim.