Dismissal ruled to be fair following employee’s refusal to commute to work during the pandemic

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The dismissal of an employee who did not wish to commute during the COVID-19 pandemic was not unfair in Accattatis v Fortuna Group (London) Ltd.

Francesco Accattatis started working for Fortuna Group (London) Limited in 2018 as a sales and project marketing co-ordinator. Given that it sells and distributes PPE, Fortuna was understandably busy from March/April 2020.

Mr Accattatis would make his five-mile journey to work by bus. He made repeated requests to Fortuna in March and April 2020 to work from home or for Fortuna to place him on furlough leave. Fortuna considered that the nature of Mr Accattatis’ work was unsuitable for homeworking and declined his request to be designated a furloughed worker because there was no reduction in his workload. Instead, Fortuna offered employees holiday or unpaid leave.

Following further requests by Mr Accattatis to be furloughed, Fortuna terminated his employment.

Mr Accattatis did not have the requisite two years’ service to bring an ordinary unfair dismissal claim. Instead, he argued that his dismissal was automatically unfair because he was dismissed for taking, or proposing to take, appropriate steps to protect himself or others in dangerous circumstances which he reasonably believed to be serious and imminent.

Employment Tribunal Judge Alliott noted the Government’s announcement on 14 February 2020 that the incidence or transmission of coronavirus “constitutes a serious and imminent threat to public health”, so objectively found that there were circumstances of danger which an employee could reasonably have believed to be serious and imminent. In turn, the Judge found that Mr Accattatis reasonably believed the danger to be serious and imminent.

However, Mr Accattatis was found not to have taken or proposed appropriate steps in response to that danger. Fortuna had already agreed that he could stay at home and avoid public transport by taking leave. However, Mr Accattatis additionally wanted to be placed on furlough or permitted to work from home. Judge Alliott found that Fortuna “reasonably and justifiably concluded” that Mr Accattatis did not qualify for the furlough scheme and could not work from home. The Judge found that Mr Accattatis’ “demands for furlough or working from home were not appropriate steps to protect him from the danger”.

Mr Accattatis’ claim was dismissed.