Accattatis v Fortuna Group (London) Limited [2024] EAT 25

Appeal against the dismissal of the Claimant's claim of automatic unfair dismissal. Appeal allowed.

The Claimant, who had less than 2 years continual service with the Respondent, which provided PPE equipment during the pandemic, asked to either work from home during the first lockdown or be furloughed. He had also caught covid during this time. The Claimant was off sick and self-isolating and asked either to be able to work from home or be put on furlough. The Respondent said that he could not work from home due to the nature of his job (and he was regarded as a key worker at this time) and it would not be appropriate to put him on furlough as there remained work for him to perform and there had been no reduction in his workload. The Claimant remained off sick and was then told his employment had been terminated due to a general ongoing failure of [his] part over a period of many months to support and comply fully with [the Respondent's] company policies and guidelines. The Claimant claimed that he had been dismissed under section 100(1)(e) of the 1996 Act (automatic unfair dismissal as he did not have the 2 years qualifying service to bring an ordinary unfair dismissal claim) and the reason, or principal reason, for the dismissal was that, in circumstances of danger which he reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. The ET dismissed his claim, saying that the Respondent dismissed before he achieved the qualifying period and the reason the Respondent wanted to prevent the Claimant from achieving protection against unfair dismissal was that he was perceived to be a difficult and challenging employee. The Claimant appealed.

The EAT allowed the appeal. The ET erred by failing, when reaching its conclusions, to consider and apply the words of section 100(2), which provides that, for the purposes of section 100(1)(e), whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

Published: 26/03/2024 16:47

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