Francesco Accattatis v Fortuna Group (London) Limited

For the purposes of section 100(1)(e) of the Employment Rights Act 1996, whether an employee took or proposed to take appropriate protective steps is an objective question for the tribunal. It must decide the question for itself by reference to all the circumstances.

Section 100(2) requires the tribunal in every case to consider the employee’s knowledge and the facilities and advice available at the time. Those matters need not carry greater weight than every other circumstance, but the tribunal’s dispositive reasoning must show that it has considered them.

Where the reasons for dismissal include both protected conduct and other conduct, the tribunal must determine whether the protected conduct was the principal reason for dismissal. There can be only one principal reason.

The claimant, who lacked two years’ service, alleged that his dismissal was automatically unfair under section 100(1)(e) of the Employment Rights Act 1996. During the first Covid-19 lockdown, he remained at home and sought either furlough or permission to work from home. The respondent dismissed him shortly before he acquired two years’ service.

The Employment Tribunal at Watford dismissed the claim. It found that the claimant reasonably believed there was a serious and imminent danger, and that remaining at home was an appropriate protective step. It found, however, that his requests for furlough or home working were not appropriate steps and that the protected conduct was not the principal reason for dismissal.

The appeal concerned whether the tribunal had applied section 100(2) and whether it had adequately determined whether the requests themselves were the principal reason for dismissal.

1. Appeal allowed and remitted. The tribunal erred in its approach to both the appropriateness issue and the principal-reason issue. The remittal was limited to those issues and was directed to the same Employment Judge if available.

2. Under section 100(1)(e) of the Employment Rights Act 1996, the appropriateness of steps taken or proposed is an objective question for the tribunal, not a question determined by what the employer reasonably concluded. The steps must be assessed against the particular serious and imminent danger which the employee reasonably believed existed.

3. Section 100(2) forms an integral part of that assessment. The tribunal must consider all the circumstances and, in every case, the evidence concerning the employee’s knowledge and the facilities and advice available at the relevant time. The words “in particular” do not prescribe greater weight for those matters than for every other relevant circumstance. They do, however, require express or otherwise clear consideration in the tribunal’s dispositive reasoning.

4. The tribunal had not referred to section 100(2), its substance, or the claimant’s knowledge concerning home working and advice concerning furlough when deciding whether his requests were appropriate. Earlier factual findings were insufficient to permit an inference that those matters had been considered. Ground 3 therefore succeeded.

5. There may be several contributing reasons for dismissal, but only one principal reason. Where a dismissal is said to be because of both conduct protected by section 100 and unprotected conduct, the tribunal must decide whether the protected conduct was the principal reason. Here the tribunal’s reference to plural “principal reasons” did not disclose whether the claimant’s demand for furlough or home working, rather than earlier unprotected conduct, was the principal reason. It failed to make or explain that essential finding.

6. The tribunal must decide afresh whether the demand was an appropriate step under section 100(1)(e), applying section 100(2), and whether that demand was the reason or principal reason for dismissal. All other findings stood.

• Employment Appeal Tribunal: Appeal allowed and remitted on limited issues: [2024] EAT 25.
• Employment Tribunal at Watford: The claimant’s section 100(1)(e) claim under the Employment Rights Act 1996 was dismissed. The lower decision’s citation was not stated in the judgment.