In the recent case of Accattatis v Fortuna Group (London) Ltd, it was held that a dismissal will not be automatically unfair under s100(1)(e) Employment Rights Act 1996 (ERA) where an employee did not do enough to reasonably protect himself from the danger.
Fortuna Group (London) Ltd were a company who sold and distributed PPE. In this case Accattatis, the employee expressed a concern around both commuting to and attending the workplace due to coronavirus. During March and April 2020, Accattatis asked, given his concerns, if he could work from home or be placed onto the furlough scheme.
The employer stated that it was not possible for his job to be done from home and that the employer business was so busy it was not appropriate to place Accattatis onto the furlough scheme. Instead they offered him to go on annual leave or unpaid leave. Accattatis did not do this and alternatively he continued to ask to be put onto the furlough scheme. On the last request in April 2020, he was dismissed.
Accattatis claimed automatic unfair dismissal for taking steps to protect himself from serious and imminent danger (s100(1)(e) ERA).
s100(1)(e) ERA: ‘in circumstances of danger which the employee reasonably believed to serious and imminent he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.’
Not automatically unfair
The Employment Tribunal (ET) held that the dismissal was not automatically unfair. Due to the fact that Accattatis did not have two years’ service, he could not bring a standard unfair dismissal claim.
The ET’s reasoning was that though Accattatis had express his fear of imminent danger, as his employer had accommodated him by offering him leave and he had not taken it, it was concluded that he had not taken reasonable steps to protect himself from the serious and imminent danger he feared.
This is a good example of the use of s100(1)(e), and employers should be mindful of the regulations and this decision when making decisions on employees protecting themselves from imminent danger. This case highlights the importance of employers being reasonable and trying to accommodate employers who fear both the implications of coronavirus and other dangers expressed.