Francesco Accattatis v Fortuna Group (London) Limited

The Employment Appeal Tribunal allowed the appeal and remitted the matter to the Employment Tribunal for a narrow rehearing. The EAT held that the tribunal erred by failing to consider and apply the words of section 100(2) of the Employment Rights Act 1996 when deciding whether the steps the employee took (or proposed to take) were "appropriate" for the purposes of section 100(1)(e). The tribunal had found that the claimant reasonably believed there to be a serious and imminent danger from Covid-19 and that remaining at home was an appropriate protective step, but concluded that his demand to be furloughed or permitted to work from home was not appropriate and that the dismissal was motivated primarily by the employer's desire to prevent him attaining two years' service and by perceptions that he was a difficult employee.

The EAT emphasised that, where a dismissal reason embraces both protected conduct within section 100 and other non-protected conduct, the tribunal must decide whether the protected conduct was the principal reason for dismissal. Because the ET did not expressly apply section 100(2) or clearly determine whether the furlough/homeworking demand was the principal reason, the EAT remitted the case to the tribunal to decide afresh those narrow issues.

Background and procedural posture. The claimant was employed as a sales and project marketing co-ordinator with Fortuna, a PPE distributor. He contracted Covid-19, sought either furlough or to work from home and remained at home. The respondent dismissed him on 21 April 2020, citing ongoing failure to comply with company policies and conduct concerns. The Employment Tribunal dismissed the claimant's automatically unfair dismissal complaint under section 100(1)(e) ERA 1996. The claimant appealed to the EAT; permission issues were considered by Eady P and HHJ James Tayler before the substantive EAT hearing.

Nature of the claim / relief sought. The claimant alleged automatically unfair dismissal under section 100(1)(e) ERA 1996 (health and safety ground) — that he took or proposed to take appropriate steps because he reasonably believed there was serious and imminent danger from Covid-19.

Issues framed by the court.

• Whether the tribunal correctly applied section 100(1)(e) to the facts (in particular whether the claimant's steps were "appropriate").
• Whether the tribunal failed to apply section 100(2) (the requirement to judge appropriateness by reference to all the circumstances, "in particular, his knowledge and the facilities and advice available to him").
• Whether the tribunal adequately decided whether any protected conduct was the principal reason for dismissal where the reasons relied on by the employer included both protected and non-protected conduct.

Court's reasoning and conclusions. The EAT summarised the tribunal's core factual findings: the claimant reasonably believed Covid-19 posed a serious and imminent danger and remaining at home was an appropriate protective step; the claimant also demanded furlough or the ability to work from home; the tribunal found those demands not to be "appropriate steps" and concluded the dismissal was largely motivated by the employer's wish to prevent the claimant reaching two years' service and by prior perceptions of him as difficult.

The EAT held (1) that section 100(2) forms an integral part of the test of whether steps were appropriate and that a tribunal must consider and take account of the employee's knowledge and the facilities and advice available to them when deciding appropriateness; (2) the ET's reasoning did not expressly apply section 100(2) nor make clear whether it had taken the claimant's knowledge and HMRC/facts about colleagues working from home into account; and (3) the ET did not clearly decide whether the demand (if protected) was the principal reason for dismissal rather than being one reason among others. For those reasons the EAT remitted the narrow issues to the ET to decide afresh, directing that the matter return to the same judge if available.

Appeal allowed. The EAT held that the tribunal erred in failing to consider and apply section 100(2) ERA 1996 when assessing whether the claimant's steps were appropriate under section 100(1)(e), and that the tribunal did not clearly determine whether the claimant's demand for furlough or homeworking was the principal reason for dismissal. The case was remitted to the Employment Tribunal to decide those two issues afresh.

Appeal from the Employment Tribunal (Employment Judge Alliott, Watford; decision sent May 2021). Permission issues considered by Eady P and HHJ James Tayler prior to the substantive EAT hearing. Remitted by the EAT [2024] EAT 25 to the original tribunal judge if available.