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Health and Safety Dismissal

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Was a tribunal entitled to conclude that there were two ‘principal' reasons for dismissal in a claim for automatic unfair dismissal on health and safety grounds under section 100(1)(e) Employment Rights Act 1996?

No, held the EAT in Accattatis v Fortuna.

The Claimant alleged that he had been unfairly dismissed on health and safety grounds and that the reason for his dismissal was that, in circumstances of danger which he reasonably believed to be serious and imminent (the COVID-19 pandemic), he proposed to take appropriate steps (in the form of working from home or furlough) to protect himself or other persons from the danger.

The Claimant was dismissed. The tribunal rejected his automatic unfair dismissal claim. It held that he had been dismissed for two principal reasons: that he was a difficult and challenging employee; and that he had written impertinent emails demanding to be furloughed or to be allowed to work from home. The tribunal found that, although there were circumstances of serious and imminent danger, neither of these reasons was protected.

The Claimant appealed. The EAT, allowing the appeal, held that the tribunal needed to look again at whether the demand to work from home or be furloughed was an appropriate step which was protected. 

The EAT further held that the tribunal had been wrong to conclude that there were two ‘principal reasons’ for dismissal. Section 100(1)(e) required a single ‘principal reason’ to be identified. 

The case was remitted to the same tribunal to consider whether demanding to work from home or be furloughed was an appropriate step and whether the principal reason for dismissal was that demand.