A Successful Appeal for Truth Legal Client in Covid-19 Health and Safety Case
March 1 2024,
March 1 2024,
The Employment Appeal Tribunal (EAT) delivered a favourable judgment for Truth Legal’s client in Accattatis v Fortuna Group (London) Limited EA-2021-000931-AS, a Covid-19 health and safety case.
On the Facts
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 Employment Tribunal (ET), the Claimant’s claim was dismissed. The Claimant appealed.
The Judgment
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. Notably, 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.
Significance
To appeal to the EAT, the claimant must believe that a legal error was made in an ET case. In practice, it is highly unlikely to succeed with an appeal. In 2022/23, the EAT accepted only 37% of appeals at the initial submission, and 40% of appeals at final hearing stage were dismissed [1].
Needless to say, Truth Legal are elated at this outcome for their client.
Navya Shekhar and Miroslaw Ksiezarek of Truth Legal Limited represented the successful Appellant in the above matter. Richard O’Keeffe of Old Square Chambers and Edward Kemp of Matrix Chambers were instructed by Truth Legal to represent the successful Appellant in this matter.
Need help with an employment law matter?
At Truth Legal, we can provide individuals with advice and support on all aspects of employment law, as well as expert assistance in resolving any legal issues you’re facing in the workplace.
Please feel free to contact us today if you have any matters you would like to discuss.
