on Friday, 22 March 2024.
Under the Employment Rights Act 1996 (ERA), a dismissal will be automatically unfair in either of the following circumstances:
Corresponding provisions under section 44 ERA protect employees from detriment on the same grounds.
In two recent decisions, the EAT has considered the extent of protection available under these provisions.
In this case, the claimant worked as a personal assistant to two businessmen under separate contracts. She worked from home during the pandemic and was put under pressure by one employer to return to the workplace. When the November 2020 lockdown was announced, that employer made a veiled threat to reduce her pay if an agreement could not be reached about her workplace attendance. The claimant resigned from this position, and was subsequently dismissed from her second post. She brought claims including for detriment and automatic unfair dismissal.
The Tribunal upheld the claims of health and safety detriment and automatically unfair dismissal under section 100(1)(d). The respondents appealed and the EAT has now dismissed that appeal.
The EAT confirmed that the claimant had raised circumstances connected to her work which she reasonably believed could be harmful to health and safety, including in relation to the lack of social distancing at work and lack of mask wearing. She also raised concerns about travelling to work on the tube. It was also possible for her to work effectively from home. As the detriments the claimant had complained of, and her eventual constructive dismissal, were linked to her refusal to return to the workplace, the Tribunal had rightly upheld her claims.
In this case, the EAT has remitted a Tribunal decision for reconsideration, having found the Tribunal erred in its approach to analysing whether an employee had been automatically unfairly dismissed after taking appropriate steps to protect himself from danger.
The claimant was employed by a company that sold PPE and whose staff were viewed as "key workers" during the pandemic. The claimant made a number of complaints about his working conditions during the pandemic and eventually went off sick with COVID-19 symptoms. He then asked to be furloughed, on the basis that he did not feel comfortable commuting to work by public transport. His request was rejected but he was told he could take holiday or unpaid leave instead. Ultimately, when the issue of the claimant's return to work could not be resolved, he was dismissed for his "failure…. to support and comply with [the respondent's] policies".
The Tribunal found that the claimant reasonably believed that there were circumstances of serious and imminent danger in commuting to and attending the workplace. However, it found that the respondent had reasonably concluded that the claimant's job could not be done from home and that he was not able to be furloughed. The Tribunal found that it was appropriate for the claimant to remain at home and not to travel to work or enter the workplace. However, it went on to find that the claimant's request to work from home on full pay, or be furloughed at 80% pay were not appropriate steps to protect himself from danger. On this basis, it dismissed the claim.
The claimant appealed and the EAT has allowed the appeal. The Tribunal had made errors including in respect of whether the claimant's request to be furloughed or to be allowed to work from home was an 'appropriate step' under section 100(1)(e) ERA. The Tribunal had seemingly failed to consider section 100(2) ERA, which states that in determining whether the action an employee took was 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". Had the Tribunal considered the resources and information available to the claimant at the time, it might have taken into account the advice the claimant had received from HMRC about his eligibility to be furloughed, as well as what the claimant knew about other colleagues who had been permitted to work from home.
These cases are useful illustrations of the scope of the various protections under sections 44 and 100 ERA. The Accattatis decision is also a good practical demonstration of the importance of taking into account the wider knowledge, facilities and advice available to the claimant when determining whether the action taken was appropriate.