Francesco Accattatis v Fortuna Group (London) Limited
[2024] EAT 25
Abraham Goldstein v Marie-Pierre Herve
14 March 2024
[2024] EAT 35
Employment Appeal Tribunal
An assistant refused to go to her boss's house to work during a COVID lockdown because of safety concerns. The boss said government rules allowed it, but the judge disagreed. The boss's actions were deemed unfair, leading to a ruling in favour of the assistant.
Key Facts
- •Claimant worked as a personal assistant for the respondent and another individual, primarily at the respondent's home.
- •During the COVID-19 pandemic, claimant raised concerns about commuting and working at the respondent's home due to health and safety risks.
- •Following the announcement of a second lockdown, claimant refused to return to work at the respondent's home, citing government guidance.
- •Respondent insisted on claimant's return, relying on government guidance, which the ET found to be unreasonable.
- •Claimant resigned, citing stress, anxiety, and feeling disrespected.
- •Respondent did not initially pay claimant's wages, notice, or holiday pay.
Legal Principles
Unlawful detriment and automatic unfair dismissal under sections 44 and 100 of the Employment Rights Act 1996 (ERA) in health and safety cases.
Employment Rights Act 1996
Constructive dismissal under section 95(1)(c) ERA requires a fundamental breach of contract justifying resignation.
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 CA
Implied term of trust and confidence in employment contracts; breach must be without reasonable and proper cause and calculated or likely to destroy the relationship.
Malik v BCCI [1998] AC 20 HL; Baldwin v Brighton & Hove CC [2007] ICR 680
Section 44(1)(c) ERA protects employees raising health and safety concerns connected with their work, even if outside the workplace.
ABC News Intercontinental Inc v Gizbert UKEAT/0160/06
Section 44(1)(d) ERA protects employees leaving or refusing to return to work due to reasonably believed serious and imminent danger at their workplace.
Rodgers v Leeds Laser Cutting Limited [2022] EWCA Civ 1659
Section 44(1)(e) ERA protects employees taking appropriate steps to protect themselves from reasonably believed serious and imminent danger, not limited to the workplace.
Von Goetz v St George’s Healthcare NHS Trust UKEAT/1395/97
Outcomes
Appeal dismissed.
The ET permissibly found the claimant's concerns fell within sections 44 and 100 ERA. The respondent's reliance on government guidance was unreasonable, and his actions constituted a repudiatory breach of the implied term of trust and confidence, leading to constructive unfair dismissal.