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One principal reason for dismissal should have been identified in COVID-19 health and safety case

Adrian Fryer

Adrian Fryer

The law protects employees from unfair dismissal on health and safety grounds. If an employee, in circumstances of danger which he reasonably believed to be serious and imminent, proposed to take steps to protect himself from the danger and was dismissed as a result, he will have been automatically unfairly dismissed under section 100(1)(e) Employment Rights Act 1996.

The test is a complex one. In the recent case of Accattatis v Fortuna, the Employment Appeal Tribunal looked at it in the context of a dismissal during the COVID-19 pandemic. The Claimant demanded that he be able to work from home or be placed on furlough. He claimed that he made these demands as he reasonably believed that the workplace (and travel to the workplace on public transport) constituted circumstances of serious and imminent danger at the height of the COVID-19 pandemic. The Claimant was dismissed and claimed automatic unfair dismissal under section 100(1)(e).

The tribunal agreed with the Claimant that the COVID-19 pandemic created circumstances of danger which the claimant reasonably believed to be serious and imminent. It also agreed that the Claimant’s proposal to work from home or be furloughed were appropriate steps to protect himself from that danger. However, they found that the Claimant was not dismissed for proposing to take these steps.

They found, instead, that he had been dismissed for two principal reasons: that he was a difficult and challenging employee; and that he had written impertinent emails demanding to be furloughed or to be allowed to work from home. The tribunal found that, neither of these reasons was protected.

The EAT allowed the Claimant’s appeal. The law states that there will be an automatic unfair dismissal in these cases where the ‘reason or, if more than one, principal reason’ for the dismissal is that the Claimant proposed to take appropriate steps to protect himself from serious and imminent danger. The tribunal had erred as they had identified two ‘principal reasons’ for dismissal: sending impertinent email requests for furlough/working from home and being a challenging employee. They needed to identify just one.

The EAT also held that, if the tribunal concluded that the principal reason was the sending of impertinent emails requiring furlough or home working, they needed to look again at whether such a demand was actually an appropriate step which should have been protected.

The case has been sent back to the same tribunal to consider whether demanding to work from home or be furloughed was an appropriate step and whether the principal reason for dismissal was that demand.

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