330: Can employees insist on being furloughed?

Dismissing an employee because they have taken appropriate steps to protect themselves or others from danger in circumstances which they reasonably believed to be serious and imminent will be automatically unfair (section 100(1)(e) of the Employment Rights Act 1996 (ERA)). In the recent case of Accattatis v Fortuna Group (London) Limited, an employment tribunal has found that an employee who was uncomfortable attending the office during lockdown and who had asked to be furloughed had not been automatically unfairly dismissed under this provision.

Mr Accattatis worked for Fortuna Group (London) Limited, which sells and distributes PPE. From March 2020, the company was extremely busy due to the demand for PPE from the NHS and other employers. Following a period of self-isolation due to COVID-19 symptoms, Mr Accattatis asked to be furloughed. This request was declined because he did not fulfil the necessary criteria under the Coronavirus Job Retention Scheme. Mr Accattatis was informed that he could stay at home on annual leave or unpaid leave, but that working from home was not an option for him due to the nature of his job. For example, he was required to deal with daily deliveries at the company’s premises, and it was not commercially viable to arrange remote access to the software he needed. Mr Accattatis asked three more times to be furloughed or to work from home. Eventually, he was dismissed by email on grounds of his failure to support and comply with company policies and guidelines. He then brought a claim of automatic unfair dismissal on health and safety grounds under section 100(1)(e) of the ERA.

The employment tribunal noted the government’s announcement on 14 February 2020 that COVID-19 constituted a serious and imminent threat to public health. The tribunal also accepted that Mr Accattatis was struggling with symptoms and felt uncomfortable using public transport and coming into the office during lockdown. There were therefore circumstances of danger which he reasonably believed to be serious and imminent. However, in the tribunal’s view, he was not proposing to take ‘appropriate steps’ to protect himself from that danger in that he not only wanted to stay at home (which had been agreed), but also demanded to be placed on furlough or allowed to work from home on full pay. The company had reasonably concluded that his job could not be done from home and had tried to accommodate his concerns by suggesting that he take unpaid leave or holiday.

In any event, the employment tribunal also held that the sole or main reason for Mr Accattatis’ dismissal was that he was perceived to be a difficult and challenging employee and the company wanted to prevent him achieving the two years’ qualifying service necessary to claim ordinary unfair dismissal. His claim for automatic unfair dismissal on health and safety grounds was therefore dismissed.

This is only an employment tribunal decision and therefore not binding on other tribunals, but it illustrates that an employee’s refusal to attend work due to COVID-19 may not be justified if their employer has reasonably tried to accommodate their concerns and followed the relevant health and safety guidance. Given the difficult circumstances of the pandemic, it is not surprising that we are seeing more COVID-19 related claims under the health and safety provisions of the ERA, particularly as the normal requirement for two years’ continuous employment does not apply, and there is no limit on compensation.