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EAT Delivers Judgment in Covid-19 Health and Safety Case

Published:

Employment Law

The EAT delivered judgment yesterday in Accattatis v Fortuna Group (London) Limited [2024] EAT 25

The Claimant worked as a sales and project marketing co-ordinator for a company which sells and distributes PPE. After the onset of the pandemic, the Claimant repeatedly asked to work from home or be placed on furlough, explaining that he was uncomfortable using public transport and working in the office. After a final request, the Claimant was dismissed by email the same day. The Claimant brought a claim that he had been automatically unfairly dismissed under s.100(1)(e) of the Employment Rights Act 1996 (‘ERA’) for having taken steps to protect himself from danger. In one of the first Covid-19 health and safety cases before the ET, the Claimant’s claim was dismissed. The Claimant appealed.

The EAT held that the ET had failed to consider and apply the words of s.100(2) ERA when reaching its conclusions, which provides that, for the purposes of s.100(1)(e) ERA, whether steps which an employee took (or proposed to take) were 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. HHJ Auerbach made some helpful observations on s.100(2) ERA at [62]-[64] which the ET must consider in every case that is potentially within scope of s.100(1)(e) ERA. Further, the ET had failed to determine whether the conduct within scope of s.100 ERA was the principal reason for dismissal; it was incumbent on the ET to do so.

Edward Kemp represented the successful Appellant in this matter, leading Richard O’Keeffe from Old Square Chambers (neither of whom appeared below) instructed by Truth Legal.

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