Details of a decision at Employment Tribunal surrounding furlough have been published in the case of Francesco Accattatis v Fortuna Group (London) Limited.

In brief, the employee claimed that his employer had breached Section 100 of the Employment Rights Act (ERA) in terminating his employment, this section of the ERA states that termination for reasons surrounding Health & Safety may be automatically unfair. This was particularly relevant in this case as the employee had less than 2 years’ service, meaning he was ineligible to the more common claim of Unfair Dismissal.

Judge Alliott rejected the case stating “I find that the respondent reasonably and justifiably concluded that the claimant could not work from home and that he did not qualify for the furlough scheme. As such, I find that the claimant did not take or propose ‘appropriate steps’ in that he was not only wanting to stay at home (which had been agreed) but also demanding that he either be placed on furlough or be allowed to work from home.”

This is not binding on future Employment Tribunal claims but does highlight that employers should consider whether the employee can demonstrate if actions represent a serious or imminent risk to health and safety.

If you are an employer faced with flexible working requests, redundancies, restructuring or other HR or Health & Safety issues then contact South East based SME Advisor on 0330 333 4997 for advice.

Full details of the case can be seen at https://assets.publishing.service.gov.uk/media/60ab87ee8fa8f520bf855d57/Mr_F_Accattatis_-_v_-_Fortuna_Group__London__Ltd__-_3307587-2020.pdf


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