COVID-19 Case Law: Health & Safety Detriment

Employment Tribunals are now starting to determine COVID-related claims which were made following the first lockdown in March 2020, one of which being the recent decision offhanded down by Watford Employment Tribunal in the case of Accattatis v Fortuna Group (London) Limited.

The Respondent in this case is a distributor of personal protective equipment (PPE) and the Claimant’s job included accepting daily deliveries, data inputting and photographing / organising promotional materials. Due to nature of the work carried out, the staff were considered key workers and so the business remained open throughout lockdown and from March 2020, had started to take measures to protect its staff pursuant to the prevailing government advice and the information on transmissibility that was available at the time.

Mr Accattatis developed COVID-19 on 30 March 2020 and began a period of self-isolation which continued beyond the expected duration and was supported by additional self-isolation notes. Shortly before he was due to return to work however, he wrote in asking to be furloughed, something he described as a “win win”. The Company, unsurprisingly given the extremely high demand for PPE at the time, took a different view and refused to furlough him in the circumstances.

Mr Accattatis persisted in arguing that the government had told people to work from home if they could, that he was still suffering from flu-like symptoms, that he did “not feel comfortable by the idea of using public transport and coming in the office during this lockdown” and suggested either that he either be allowed to work from home (with no indication as to how that could possibly work) or placed on furlough. He concluded that “both solutions work for me. Up to you which one you find more convenient”. The Company once again declined, following which Mr Accattatis asked again that they reconsider as he was only receiving SSP and needed to pay his bills whilst he remained unwell. He followed this up with an email stating that the HMRC JRS helpline had confirmed that the business could use the furlough scheme to pay those who were self-isolating. Twenty minutes later, he was dismissed by email “due to a general ongoing failure on your part over a period of many months to support and comply fully with out company policies and guidelines”.?

As Mr Accattatis had insufficient service to bring a claim of ordinary unfair dismissal, he argued that his dismissal was automatically unfair under section 100 of the Employment Rights Act 1996 (ERA 1996), stating that his workplace posed a serious and imminent danger to him. As this is a ‘day one’ right, it meant that he did not require the usual two years’ service to progress his unfair dismissal claim. . In order for section 100 protection to apply, the employee must hold a reasonable belief that their workplaces poses a serious and imminent threat to them, or to others as judged at the date they decided to leave / not return to work.

In this case, the Tribunal held that the first question, the one of reasonable belief of danger that was serious or imminent, could certainly exist based on the government announcements at the time and moreover, they were satisfied that Mr Accattatis held that reasonable belief himself. His claim, however, faltered at the second hurdle, i.e. that of taking appropriate steps to protect himself or other persons. The Employment Judge concluded in this case that his demands for furlough (which he did not qualify for) or working from home (which he could not feasibly do) were not appropriate steps to protect him from danger. The Judge took into account that he had only made vague references to his concerns, that he failed to explore ways they might be mitigated, instead fixating on home-working or furlough, and that he appeared most concerned about losing his income.

The Tribunal did note that even if Mr Accattatis had taken appropriate steps to protect himself, he had been dismissed because he was considered challenging. That dismissal was not just because of his conduct around the time of his dismissal, but also because of the way he had conducted himself previously, and not just because he had refused to return to work. The Company had wanted him out before he acquired the qualifying service for protection against ordinary unfair dismissal.

Although this decision is not binding, it does offer some interesting learning points and gives an indication as to how Tribunals are likely to view similar COVID-19 related claims under sections 44 and 100 of the ERA 1996. It certainly seems unlikely to be sufficient for staff to express generic concerns about their working environment or travel arrangements. Tribunals are likely to look for clear explanations from employees seeking to rely on these provisions, setting out why they believe their workplace or commute is dangerous and to give their employer opportunity to explain the measures they have taken and to consider additional steps to protect and reassure the employee. Furthermore, it is not enough for the employee to establish there is a risk; they must be able to show that the risk is serious and imminent despite anything they and their employers can do to reduce it. That includes being prepared, as the employee, to adhere to he measures in place, where possible, for example wearing masks and social distancing.

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