COVID in the Employment Tribunal – Employee’s dismissal was not automatically unfair.

As a timely follow up to our blog considering the impending rise of Employment Tribunal cases being brought where employees disagree with their employer’s handling of events during the pandemic, the Employment Tribunal has recently delivered another useful decision.

It is important to note that, because this is a decision from the Employment Tribunal rather than a higher court, this is a non-binding outcome.

In Accattatis v Fortuna Group (London) Ltd it was ruled that Fortuna Group (London) were justified in their decision to dismiss Mr Accattatis in April 2020 when he would not accept the options to go on either annual leave or unpaid leave instead of working from home on full pay or going on furlough leave under the Coronavirus Job Retention Scheme for 80% of his normal pay. Mr Accattatis claimed that the decision to dismiss him fell within the scope of automatic unfair dismissal because of his reasonable belief of being in serious and imminent danger. Amongst other reasons, an employee is considered automatically unfairly dismissed if the main reason for their dismissal was because of their taking action, or proposing to take action, over a health and safety issue

Once again, the specific facts of this case guided the ET’s decision: Fortuna Group manufactured PPE, meaning that they were incredibly busy and moreover Mr Accattatis’ role could not be carried out from home. Mr Accattatis had requested to be placed on furlough leave and to receive 80% of his normal pay because he did not feel safe using public transport to travel to work. Where his role could not be carried out from home, his employer agreed that he could stay at home but that this must be as annual leave or unpaid leave. The ET interpreted that Fortuna Group had acted reasonably because they had recognised their employee’s desire to avoid using public transport, but that they were also reasonable in declining the request to work from home or utilise the CJRS furlough scheme because there was no reduction in demand for Mr Accattatis’ role and this role could not be carried out from home.

We think that this case is particularly interesting for employers because it reiterates the importance of interpreting government guidance accurately and fairly. Fortuna Group had acted entirely reasonably, in the view of the ET, by preventing Mr Accattatis’ access to the CJRS. The ET viewed Mr Accattatis’ intent as motivated more by financial gain than his need to subvert the imminent danger posed by COVID-19 if he were to continue using public transport. The CJRS was established to enable businesses experiencing a downturn to survive and for employees to retain their jobs if their role was temporarily reduced or not required as a result of the pandemic. Furthermore, the ET explained that they found in favour of Fortuna Group because of the way that they communicated with Mr Accattatis and sought to appease his perceived danger of travelling on public transport.

It is a testament to Fortuna Group that they acted in accordance with the intentions of the government guidance and were not swayed by the pressure created by Mr Accattatis’ persistent requests to access the CJRS. At times it can be difficult for employers to exercise an unbiased interpretation of the relevant guidance and rules that are applicable to difficult situations arising in the workplace. This is where the professional input of a legal adviser can avoid a costly mistake or equally confirm an important decision.

Our legal services team can help you review the measures and policies you have in place and provide new policies if you haven’t yet put something in place. Get in touch with the team via the form below.

We always recommend that you seek advice from a suitably qualified adviser before taking any action. The information in this article only serves as a guide and no responsibility for loss occasioned by any person acting or refraining from action as a result of this material can be accepted by the authors or the firm.


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