Hamilton v Solomon And Wu Ltd

For an automatic unfair-dismissal claim under section 100(1)(d) of the Employment Rights Act 1996, the tribunal must make findings on the employee’s reasonable belief in serious and imminent danger which the employee could not reasonably avert, and on the reason for dismissal. A claim fails where the tribunal permissibly finds that the workplace was safe, the employee could not reasonably hold the required belief, and dismissal was for an independent reason outside the subsection.

An arguable point may arise in another case as to whether the existence of circumstances of danger is an objective preliminary question. That issue was not determinative here.

The claimant, a joiner employed by the respondent, was dismissed after refusing to work in the workshop because of dust. He alleged automatic unfair dismissal, including under section 100(1)(d) of the Employment Rights Act 1996.

The Employment Tribunal at Watford dismissed the claim. It found that dust extraction and protective arrangements were adequate, the workshop was reasonably safe, and the principal reason for dismissal was the claimant’s continuing inability to accept management instructions.

At an appellant-only preliminary hearing, the Employment Appeal Tribunal considered whether the proposed appeal disclosed arguable errors in the interpretation and application of section 100(1)(d).

1. Appeal dismissed. The Employment Tribunal had made findings sufficient to dispose of each material aspect of the section 100(1)(d) claim under the Employment Rights Act 1996.

2. The approach identified in Oudahar v Esporta Group Ltd [2011] IRLR 730 required findings on the employee’s reasonable belief concerning serious and imminent danger, and on the reason for dismissal. Unlike the tribunal in Oudahar, this tribunal had made both sets of findings.

3. The tribunal was entitled to find that the workplace was reasonably safe and that the claimant could not reasonably believe that inadequate dust extraction created serious and imminent danger which he could not reasonably avert. It also found that the dismissal resulted from his inability to accept instructions from management, rather than from conduct protected by section 100(1)(d).

4. The judge observed that, on the statutory wording, an appropriate case might require consideration of a prior objective question: whether circumstances of danger in fact existed. That possible three-stage analysis did not require determination because the tribunal’s safety findings effectively answered that question as well.

5. The grounds raised no new issue requiring further permission. There were no arguable grounds of appeal, and no further action was ordered.

• Employment Appeal Tribunal: appellant-only preliminary hearing; appeal dismissed and no further action ordered.
• Employment Tribunal (Watford): dismissed the claimant’s automatic unfair-dismissal claims under sections 103A and 100, and his whistleblowing detriment claim under section 43B of the Employment Rights Act 1996.