07841706203 louise@watersidehr.uk

How far should you take into account any underlying medical conditions when issuing a disciplinary? A recent Tribunal case has given some good insight into this area, although this doesn’t set a legal precedent it is good to bear in mind.

What was the case?

The employee, Mr Dytkowski was a factory worker who had worked as a process operative at a biscuit factory from 2009 until his dismissal on 11 January 2019.

Mr Dytkowski was diagnosed with insulin-dependant diabetes in March 2018, reasonable adjustments were made for him in his employment such as short breaks to check his blood sugar, regular eating times and time off to attend appointments.

There were a number of incidents with his temper.  On 7 August 2018 he shouted at a supervisor after not allowing him to immediately take a break to check his blood sugar levels.  This matter was escalated but no action was taken although he was told he was angrier than he used to be.  On 4 December 2018 Mr Dytkowski took offence after a colleague made a comment about his late arrival to a meeting.  After the meeting he approached the colleague and grabbed his clothes or pushed him whilst shouting at him in Polish.  The words were roughly translated to say “say that to me again and I’ll smash you ****ing face.  Now get out of my ****ing face.”

This was reported to a manager who instigated a disciplinary process and suspended Mr Dytowski.  Mr Dytowski admitted he was attacked his colleague and that it was wrong to do so.  He explained that his blood sugar had been going up since the weekend and gave a statement that he has been feeling horrible the day before the incident and on the morning of the incident his car heater had broken.  He had to defrost the car, which made him late and put him in a bad mood, and there had been earlier difficulties in the relationship with the colleague he attacked.

Occupational Health sent a report explaining that he had been struggling to deal with his diabetes and that his blood sugar levels had been spiking high.  They advised that Cognitive Behavioural Therapy could have been an option to support him in managing anger and that he should see a diabetic nurse as soon as possible.

On 18 December 2018 Mr Dytowski attended a disciplinary hearing and said he had ‘exploded’ during the altercation and showed evidence of his blood sugar records.  The hearing was reconvened after Christmas on 11 January 2019.  He had since started Cognitive Behavioural Therapy and said he didn’t want to happen again and felt he could learn from it.  He also said that his pancreas had stopped working which led to an explosive reaction.

The Tribunal were told by Mr Dytowski that following a diagnosis of insulin dependent diabetes the commencement of treatment prompts the pancreas to resume its function but after some months the pancreas ‘dies’ and the patient becomes entirely dependant on injected insulin.  He felt this happened during the week of the incident and was why he unable to control his emotions.

However, the person conducting the disciplinary hearing felt that he didn’t think the diabetes had an influence on the incident and he dismissed Mr Dytowski for gross misconduct.  He appealed but this was unsuccessful.

What did the Tribunal rule?

The Tribunal found that he was discriminated against on the grounds of disability and was unfairly dismissed.  The Judge added his diabetes meant his reaction was different to what it may have been on another day and his unmanaged diabetes played a part in his behaviour.  They ruled that a final written warning would have been a more proportionate response and that the dismissal was not justified as his conduct and long service suggested he would be receptive to a warning.  His compensation was reduced by 30% to account for his behaviour.

What does this mean for employers?

  • Ensure that if there is an underlying condition you consider whether this has affected the incident and behaviour in question.
  • Seek Occupational Health advice on this prior to making a decision to show you have been reasonable in your approach and have considered other factors.
  • Take into account previous behaviour and the service of the employee.