EAT reexamines dismissal over health concerns in Accattatis v Fortuna Group: Key legal issues clarified

Citation: [2024] EAT 25
Judgment on

Introduction

In the case of Francesco Accattatis v Fortuna Group (London) Limited ([2024] EAT 25), the Employment Appeal Tribunal (EAT) examined an employee’s claim of automatically unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996. The key legal issues were whether the employee was dismissed for taking (or proposing to take) appropriate steps to protect themselves from serious and imminent danger, and whether the Employment Tribunal had properly considered all the relevant circumstances in reaching its decision.

Key Facts

Mr. Francesco Accattatis, employed as a sales and project marketing coordinator, was dismissed from Fortuna Group (London) Limited during the Covid-19 pandemic after expressing concerns about working conditions. He did not have the requisite two years’ service to claim ordinary unfair dismissal but claimed his dismissal was automatically unfair due to his health and safety concerns under section 100(1)(e) of the Employment Rights Act 1996. The tribunal at first instance held that the claimant’s dismissal was not for taking appropriate steps under the Act since the claimant was seeking furlough or work from home arrangements—neither of which was seen as an appropriate step under section 100(1)(e).

The legal principles center around the interpretation and application of section 100(1)(e) and section 100(2) of the Employment Rights Act 1996. Section 100(1)(e) protects employees from dismissal if the principal reason for the dismissal was the taking (or proposing to take) appropriate steps in response to a reasonably believed serious and imminent danger. Section 100(2) provides further guidance, stipulating that the appropriateness of an employee’s steps is to be judged by reference to all circumstances, including specifically the employee’s knowledge and the facilities and advice available to them.

In this case, the EAT highlighted the tribunal’s failure to adequately consider the claimant’s knowledge and the advice available to him, crucial factors under section 100(2), when determining what constitutes “appropriate steps.” The tribunal’s error was in not applying the correct objective test with the requisite emphasis on the claimant’s perspective—their knowledge, facilities, and advice available at the time of the steps taken.

Another legal principle debated was the meaning of “principal reason” for dismissal. The EAT clarified that an Employment Tribunal must singularly identify the principal reason for dismissal, especially in cases where there may be a blend of both protected and unprotected conduct contributing to the dismissal.

Outcomes

The EAT directed a remittal for two narrow issues: firstly, whether the request to be furloughed or to work from home was an “appropriate step” as envisaged by section 100(1)(e), taking into account section 100(2); and secondly, to decide whether the request was the principal reason for the claimant’s dismissal. This remittal was to be heard by the same Employment Judge, if available, emphasizing the importance of continuity and specialized understanding of this complex area of employment law.

Conclusion

The EAT in Accattatis v Fortuna Group reemphasized the statutory protections available to employees under section 100 of the Employment Rights Act 1996, particularly the evaluation of appropriateness of the steps taken by an employee in the face of serious and imminent danger—with due regard to the employee’s individual circumstances as mandated by section 100(2). The EAT also clarified the need for Employment Tribunals to determine the principal reason for dismissal, without lumping together distinct conduct. This case thus underscores the critical nature of a tailored assessment of an employee’s actions within the specific context of their knowledge and advice received, establishing a precedent for how similar cases ought to be evaluated by the tribunals.

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