Mr Gary Usher v Polyfoam XPS Limited — 2020

Mr Usher brought a claim for ordinary unfair dismissal arising from his summary dismissal following a forklift truck collision on 1 March 2020. The tribunal found that the principal reason for dismissal was conduct, which is a potentially fair reason under ERA 1996 s.98(1) and (2). It accepted that Mr Usher immediately admitted fault for the incident and maintained that position during the investigation, disciplinary hearing on 16 March 2020, and appeal on 20 March 2020.

The tribunal held that Polyfoam had a genuine and reasonable belief in misconduct after a reasonable investigation, applying the Burchell approach and the s.98(4) band of reasonable responses test. It relied on the seriousness of forklift operations, the company’s health and safety policies, Mr Usher’s training and experience as a Team Leader, and the evidence that he was distracted and did not look back before reversing. The tribunal also noted the earlier 28 February 2019 mobile phone incident as part of the overall health and safety context, although that incident was not treated as gross misconduct on appeal.

Mr Usher argued that dismissal was too harsh in light of his 28 years’ service, his clean record, and personal circumstances, and that Polyfoam treated him inconsistently compared with a temporary agency worker involved in a 2018 forklift incident. The tribunal rejected that comparison, finding the agency worker’s case materially different because he was inexperienced, had not received full training, and was not shown to have behaved recklessly. It also found that Polyfoam had considered Mr Usher’s length of service and personal circumstances, but that health and safety considerations justified dismissal. The tribunal concluded that the investigation, disciplinary process, and appeal were fair and that dismissal fell within the range of reasonable responses.