Appeal against the ET’s finding that the Claimant was not unfairly dismissed (Hamilton v Solomon And Wu Ltd UKEAT/0126/18/RN).

Ben Spence

The Claimant was employed by the Respondent company from 30 August 2016 until 22 November 2016 as a joiner.  The claimant has insufficient length of service to claim ordinary unfair dismissal. He claimed unfair dismissal under s 100(1)(d) ERA 1996 by reason of the dust in the workshop where he worked.

The Claimant was line managed by Ms Paula Groves, Head of Resin Panel Production, who in turn reported to Mr Solomon.  The Claimant’s work was to sand and polish and sometimes cut the resin panels in the workshop and occasionally install the products on site.

On 21 November 2016, Mr Solomon gave the Claimant a task to do under Ms Groves’ instruction using a new belt sander, the Wadkins sander.  Ms Groves was also collecting data about the new sander.  The Claimant felt that he was doing Ms Groves’ job and was frustrated by the manner in which she was managing him.  He went to complain to Mr Solomon and in addition told Mr Solomon that he was concerned about the level of dust in the workplace.  Mr Solomon asked the Claimant to continue doing his job and that he would speak to Ms Groves.

Mr Solomon set up a meeting with the Claimant, Ms Groves and Mr Currer, who had worked with Ms Groves to create the production schedule, hoping that between them they could make clear to the Claimant how the company worked and how he had to work within it.  Things did not go according to plan as when the Claimant entered the room, he asked to have a solicitor present.  When the request was refused, he became increasingly agitated and raised a number of health and safety matters that he said had occurred during the course of his employment and said that he would be going to the Health and Safety Executive about his concerns.

In view of Mr Solomon’s concerns about the Claimant’s ability to follow the instructions of his manager he decided the Claimant should work at the workshop the following day, and not go out to an installation as previously planned.  When the Claimant returned the next day, he was told he would be working in the workshop. The claimant said that he would not do that because it was unsafe because of the dust that was in the atmosphere when he did it.  Mr Solomon then dismissed the Claimant for refusing to do what he was being required to do.


The Tribunal considered the evidence of the witnesses carefully and found in general terms that the Claimant was not a credible witness and that Mr Solomon was a credible witness. The Tribunal concluded that “the real reason for the Claimant’s dismissal was his inability to accept instructions from either Ms Groves or (eventually) Mr Solomon.

The Tribunal made the necessary findings on the evidence before it to conclude (1) that there were no circumstances of danger; (2) the Claimant did not have a reasonable belief in serious or imminent danger that he could not reasonably be expected to avert: and (3) he was dismissed for his inability to accept instructions, which had been an ongoing problem prior to his raising any concerns about dust in the workplace.


The EAT held that there were no arguable grounds of appeal and no further action should be taken.


Ben Spence – HR Business Partner

Ben Spence

I am a confident and commercial MCIPD qualified HR Professional with over 15 years’ experience in Human Resources. Prior to joining Cook Lawyers I spent 3 years at Wigan and Leigh College as a HR Business Partner and 4 years providing a HR Service to Schools in Lancashire and Wigan through the local authority. I have a real passion to ensure employment issues are managed effectively and in a timely manner.