The Tribunal observed that the government had announced on 14 February 2020 that COVID-19 posed a serious and imminent threat to public health. This, together with Mr Accattatis’ emails expressing concern about commuting and attending the office, showed he reasonably believed there were circumstances of serious and imminent danger.
However, it is a requirement under section 100(1)(e) ERA 1996 for Mr Accattitis to have taken appropriate steps to protect himself from danger or to have communicated the circumstances of danger to Fortuna. Fortuna had reasonably concluded that Mr Accattatis’ job could not be done from home and that he did not qualify for furlough leave, but had instead suggested taking holiday or unpaid leave. Mr Accattatis’ response was to demand that he be allowed to work from home on full pay, or be furloughed on 80% of pay. These demands were not ‘appropriate steps to protect himself from danger’, so his claim failed.
However, in the case of Gibson v Lothian Leisure, an employee was found by the Tribunal to have been automatically unfair dismissed under the same legislation in a case which shows how strongly the decision relies on the specific facts. In this case, when his employer asked Mr Gibson to return to work at the restaurant where he was employed, Mr Gibson,
who was concerned about catching COVID-19 at work and passing it onto his clinically vulnerable father, raised concerns about the lack of PPE or other COVID-secure workplace precautions. The employer’s response was robustly negative, and he was told to “shut up and get on with it”.
With no prior discussion, the employer dismissed Mr Gibson summarily by text message on 30 May 2020.
An employment tribunal found that Mr Gibson had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. The circumstances of danger were the growing prevalence of COVID-19 and the potential significant harm to
Mr Gibson’s father if he contracted the virus. Mr Gibson reasonably believed that this was a serious and imminent danger, leading him to raise concerns regarding the lack of PPE. Until Mr Gibson had raised those concerns, he had been a successful and valued member of staff.
On a further different set of facts, the Tribunal found in the case of Montanaro v Lansafe Ltd that Mr Montanaro, who was in Italy on leave when the country went into lockdown on 9 March 2020 and when UK government guidance stipulated 14 days’ isolation on return from Italy, had been automatically unfairly dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
The tribunal held that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, and that Mr Montanaro reasonably believed the danger was serious and imminent. Mr Montanaro had taken appropriate steps to protect himself and others, including asking his employer for advice, instructions and assistance with documentation, forwarding appropriate information about the situation in Italy, being ready to receive communication and instructions for work on his mobile and laptop, and continuing his work on a day-to-day basis.