Was Dismissal for Gross Misconduct Following a Diabetic Rage Unfair and Discriminatory?

November 15th, 2021

A Manchester Employment Tribunal in Dytkowski v Brand FB Ltd. found in favour of the claimant and stated that the employer should have given due consideration to the impact of his disability.

At the age of six my sister was diagnosed with type 1 diabetes. She suddenly lost weight, became very poorly and ended up in hospital for days. Fortunately it was quickly diagnosed and treated but she emerged from hospital having to face and manage a life-long condition.  For her the impact was huge – she had to start injecting herself twice a day, regularly pricking her finger to monitor her blood glucose levels and – even worse for a six-year-old – was no longer ‘allowed’ to eat sweets, cakes and puddings as part of a strict diet to control the condition.  

Managing type 1 diabetes is a challenge.  Throughout the day there is the constant challenge to maintain blood glucose levels which are impacted by the amount of insulin taken, food consumed, stress, exercise or alcohol.  If your levels are too high this can lead to short- and long-term health issues.  If they suddenly fall too low it can become life threatening and the diabetic can have a hypoglycemic attack (hypo).  As a child, this was distressing to witness  and the hypos would manifest themselves in very different ways from fainting and fitting to screaming and from anger/emotion to become all floppy unable to communicate. Years later my sister manages this well as she has had years of practice and can (generally) spot the signs of an early hypo.

I can therefore empathise with the Claimant in this case.  Mr Dytkowski had worked in the Respondent’s factory as a Process Operative since 2009 with an unblemished work record.  He was diagnosed with type 1 diabetes in 2018 and was still struggling to accept and manage his condition.  Following a series of more minor incidents, one day he was impacted by wavering blood sugar levels and threatened a colleague during an altercation.  Following a disciplinary investigation, he was dismissed for gross misconduct.  Claims were filed for unfair dismissal and disability discrimination.

In this first instance decision, the tribunal upheld Mr Dytkowski’s claims for unfair dismissal and discrimination arising from disability under section 15 of the Equality Act.  This judgment serves as a reminder to employers to consider issues and behaviours that may relate to a disability.  In this case it was found that the Claimant’s behaviour was “something arising” from his disability and that this need not be entirely caused by the disability but must be a significant influence, which was established in this case.

The sanction of dismissal was found to have been disproportionate.  The judgment suggested that a written warning may have been more appropriate, especially in consideration of his long term and loyal service.  There was also a failure to consider whether there was a risk of the behaviour recurring and how the parties could manage that risk.

In this case the Claimant’s compensation was reduced by 30% to reflect an element of contributory fault on the basis that he allowed his emotion to get the better of him and dictate his actions.

This blog was written by Caroline Oliver – Senior Solicitor: didlaw.

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