Refusing to return to work, or serious concerns, about health and safety as a consequence of the Covid 19 pandemic are a common issue in 2021.
I have heard from a good deal of employees over the last 12 to 18 months with a wide range of questions and issues about returning to work, the duty of the employer to discharge a duty of care, whether the employee can refuse to go back, and related concerns.
A recent UK Employment Tribunal decision was asked to address this question in the cases of Accattatis v Fortuna Group (London) Limited.
The employee worked for a company selling personal protection equipment and had misgivings about working in the office and travelling on public transport during the Covid lockdown in the UK.
He repeatedly requested to be permitted to work from home or be placed on furlough (the UK equivalent of lay off). The employer refused by reason of how busy he was and agreed he could take unpaid leave or holidays.
The employee declined this offer and requested to be placed on furlough three further times. He was dismissed at that point.
He brought a claim to the employment tribunal claiming that he had been dismissed for having taken steps to protect himself from danger.
The tribunal agreed that the belief that there was imminent danger was a reasonable one.
However, the tribunal determined that the steps-insisting on working from home or being placed on furlough-he took to protect himself from the danger were not appropriate steps to take in the circumstances.
The employer had tried to accommodate his concerns by allowing him take unpaid leave or holidays and had correctly determined that he could not do his job from home and he did not qualify for furlough.
The employer had also taken steps to prevent the spread of Covid 19 in the workplace.
The tribunal determined that he was not unfairly dismissed for health and safety reasons.
Read the full decision here in Accattatis v Fortuna Group (London) Limited
The employee in this case was forced to bring his claim for unfair dismissal on ‘health and safety grounds’ for he did not have the necessary two years’ service required in the UK to bring a claim or ordinary unfair dismissal.
And the conclusion from the employment tribunal in the UK was that the employer had taken reasonable steps to deal with his health and safety concerns. That being the case the employee’s case failed.
This case is not directly applicable in Ireland in the Workplace Relations Commission or the Labour Court. But it would probably have some persuasive authority in the decision making processes of any WRC adjudicator in the absence of any hard and fast regulations in this problematic area.