Will a failure to take into account a medical condition mean a finding of unfair dismissal? This was recently considered by the Employment Tribunal in a case involving a claimant who has type 1 diabetes and was dismissed following a heated exchange in the workplace.
Dytkowski v Brand FB Ltd
The Claimant was a long-standing employee for the Respondent, having been employed since 2009. The Tribunal heard that the Claimant, who had various roles throughout his time working for the Respondent was diagnosed with insulin-dependent diabetes in March 2018 and also had a hearing impediment.
In December 2018 an incident occurred during which the Claimant had an altercation with another colleague, who commented on his late arrival in to work that day. The Claimant approached his colleague and either by pushing him or grabbing his clothes stated, “say that to me again and I will smash your f****** face” and “now get out of my f****** face”.
The Tribunal heard that the incident was over quite quickly and both parties went their separate ways and continued to work that day; however, the incident was reported and a disciplinary procedure followed. The Claimant was subsequently suspended.
During the investigation the Claimant explained that his blood sugar levels had been rising since the weekend. The Claimant also confirmed that on the morning of the incident, his car heater had broken, meaning that he had to defrost the car. This is what had made him late and put him in a bad mood. The Claimant also admitted that there had been earlier difficulties in the relationship with the colleague in question.
Throughout the procedure, the Claimant was honest about the fact that he attacked his colleague and confirmed that he understood it was wrong to do so. Following the investigation, Occupation Health sent a report explaining that he had been struggling to deal with his diabetes and various medical issues, and that his blood sugar levels appear to have been spiking. Occupational Health advised that Cognitive Behavioural Therapy (‘CBT’) could have been an option to support him in managing anger and that he should see a diabetic nurse as soon as possible.
The Claimant attended a disciplinary hearing in which he admitted that he had exploded during the altercation and showed evidence of his blood sugar records. The hearing was adjourned for the Christmas break and reconvened in January 2019. By this time the Claimant had started Cognitive Behavioural Therapy and said that he did not want this to happen again and felt he could learn from it.
The Claimant had been informed by his doctors that his body was going through changes which occur following a diagnosis of insulin-dependent diabetes, and this was happening during the week of the incident. The Claimant believes this is what led him to him being unable to control his emotions, feeling horrible during the week of the incident and having explosive rage as his pancreas had stopped working. However, it was said during the investigation that the Respondent “didn’t think the diabetes had an influence on the incident” and dismissed the Claimant for gross misconduct. The Claimant appealed this decision, but he was unsuccessful. The Claimant brought claims for unfair dismissal and disability discrimination.
The Manchester Employment Tribunal found that the Claimant was unfairly dismissed after his employer did not take his medical condition into account. The Tribunal found that there was no focus on whether any risk of recurrence could be reduced or managed, nor was there any consideration on the effect the dismissal would have on the Claimant.
Claimant’s disability discrimination claims also succeeded.
The Employment Tribunal found that the Claimant was dealing with a stressful situation regarding his car and late arrival, which was then compounded by provocation when his colleague remarked on his late arrival. The Claimant was found to be an entirely honest witness, and his evidence that unmanaged diabetes had played a material part in his behaviour on the day was favoured, as was his view that his reaction was different to what it would have been on another occasion due to his diabetes, which is not something that can be lightly disregarded.
The Tribunal ruled that a final written warning would have been a more proportionate sanction and that the dismissal was not justified as his conduct and long service suggested he would have been receptive to a warning. The Tribunal did however, apply a 30% reduction to the compensation that the Claimant would have otherwise been awarded due to his contributory conduct.
Employers should be mindful of medical conditions and the impact this can have on their behaviour when investigating their conduct during an incident. The medical position should always be considered and not disregarded as being unlikely to have any influence. Employers are rarely medically qualified to make an assessment on the impact of any medical condition on an employee’s behaviour.
Having taken any medical factors into account and obtaining medical advice where appropriate, employers should also ensure that it is factored into any sanction.
If you have any queries relating to disciplinary procedures or the interplay between disability and misconduct, or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.