A factory worker with unmanaged type-1 diabetes was unfairly dismissed after he went into a “diabetic rage” and threatened a colleague, a tribunal has ruled.
The Manchester employment tribunal found that Mr P Dytkowski, who worked as a process operative at Brand FB’s biscuit factory from 2009 until his dismissal on 11 January for gross misconduct, was unfairly dismissed because his employer did not take his condition into account.
The tribunal ruled that there was “no focus on whether any risk of recurrence could be reduced or managed”, nor was there any consideration on the effect dismissal would have on Dytkowski who was undergoing cognitive behavioural therapy (CBT) and assistance to better manage his condition.
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Dytkowski’s claims for unfair dismissal and discrimination were upheld, however the tribunal reduced his compensation by 30 per cent to account for his behaviour. A further claim of failure to make reasonable adjustments was not upheld.
The tribunal heard that Dytkowski, who undertook various roles in the biscuit-making process, was diagnosed with insulin-dependent diabetes in March 2018. He told the tribunal that this was a “difficult diagnosis to accept and manage”, but received commendable support from occupational health (OH) who arranged reasonable adjustments for him. This included short breaks to check his blood sugar, regular eating times and time off to attend appointments.
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The tribunal heard there were a number of incidents concerning Dytkowski’s 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. The matter was escalated to production manager Mr Bourne, who said to Dytkowski “you are more angry than you used to be”, but there was no formal disciplinary action.
On 4 December 2018, Dytkowski took offence after a colleague made a comment about his late arrival to a meeting. After the meeting, he approached the colleague and was either “grabbing his clothes or pushing him” while shouting at him in Polish.
The tribunal said Dytkowski’s words roughly translated to “say that to me again and I’ll smash your ****ing face. Now get out of my ****ing face”.
The incident was over very quickly and both parties went to work, but it was reported to a manager, who instigated a disciplinary process and suspended Dytkowski. The tribunal heard Dytkowski admitted “all along” that he attacked the colleague and that it was wrong to do so.
During the investigation Dytkowski explained that his blood sugar had been “going up” since the weekend. He also gave a statement that he had been feeling “horrible” the day before the incident and that the morning of the incident his car heater had broken. He said that 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 in question.
Following the investigation, OH sent a report explaining that he had been “struggling” to deal with his diabetes and various medical issues, and that his blood sugar records appear to have been “spiking high”. OH advised that CBT 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, Dytkowski attended a disciplinary hearing, conducted by Bourne where he 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. By this time Dytkowski had started CBT and said that he “did not want this 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.
Dytkowski explained to the tribunal that, on the basis of what he has been told by his treating clinicians, that there can be a “honeymoon period” following a diagnosis of insulin-dependent diabetes where the commencement of insulin treatment prompts the pancreas to partially resume its function. However, after some months the pancreas “dies” and the patient will become entirely dependent on injected insulin.
Dytkowski’s theory was that this change was happening during the week of the incident and account of him being unable to control his emotions, feeling horrible and having “explosive rage”.
However, Bourne said that he “didn’t think the diabetes had an influence on the incident” and dismissed Dytkowski for gross misconduct. He appealed the decision but was unsuccessful.
Employment Judge Joanne Dunlop ruled that Dytkowski was discriminated against on grounds of disability and was unfairly dismissed. Dunlop said that he was dealing with a “stressful situation” regarding his car and late arrival, and then “compounded by some provocation”.
She also said he was “an entirely honest witness”, adding that his diabetes meant his reaction was different to what it would have been on another occasion, which was “not something that can be lighty disregarded”, and that his unmanaged diabetes played a material part in his behaviour on the day.
The tribunal 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 have been receptive to a warning.
Kate Palmer, HR advice and consultancy director at Peninsula said that the ruling shows the importance of taking into account underlying medical conditions when deciding on the level of sanction in disciplinary matters.
“Whilst the tribunal here agreed that the claimants’ actions were wrong, it was decided that dismissal was a disproportionate response to this in light of the employees medical condition, and that whilst the employer had a legitimate aim of ensuring a ‘safe and appropriate working environment’ in dismissing, less severe means could have been used to achieve this,” said Palmer.
Alan Lewis, partner at Constantine Law said employers should take careful note of this case when dealing with issues arising from disability, in particular when considering poor behaviour that may be caused by disability.
“The importance of finding out as much detail as the employer reasonably can as to whether or not the misconduct is likely to be repeated cannot be emphasised enough. That is where Brand FB Ltd fell short in this case,” said Lewis.
Neither Brand FB Ltd nor Dytkowski could be reached for comment.