Mr Francesco Accattatis v Fortuna Group (London) Limited — 2020

Mr Accattatis was employed by Fortuna Group (London) Limited from 8 May 2018 until his dismissal with immediate effect on 21 April 2020. He did not have two years' service for ordinary unfair dismissal, so his case proceeded as a section 100 ERA 1996 automatic unfair dismissal claim based on health and safety. His notice pay and holiday pay claims were withdrawn at the outset of the hearing.

The tribunal accepted that the COVID-19 outbreak created circumstances of danger, and found that the claimant subjectively believed the danger to be serious and imminent. It also found that he had explored home working from about 25 March 2020 and, by 17 April 2020, said he did not feel comfortable using public transport and coming into the office during lockdown. However, the tribunal found that the respondent reasonably concluded he could not work from home and that he did not qualify for furlough.

On the statutory question whether he took or proposed to take appropriate steps to protect himself or others, the tribunal found that the claimant's relevant step was to stay at home, which the respondent had allowed through paid or unpaid leave. It held that his requests to be placed on furlough or to work from home were not appropriate steps within section 100(1)(e), so that provision was not engaged and the claim failed. The tribunal also held that, even if the statutory criteria had been met, the principal reason for dismissal was not those steps but the respondent's wish to end his employment before he reached two years' qualifying service, against a background of its view that he was a difficult and challenging employee who had written what it regarded as impertinent emails.