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In the case of Dytkowski v Brand FB Ltd ET/2402856/19 a long serving diabetic employee was awarded almost £20,000 in compensation after he was fired for losing his temper (which was caused in part by his diabetes, a medical condition that he suffered from).

The facts in Dytkowski v Brand FB Ltd ET/2402856/19

Mr Dytkowski commenced work as a Process Operative in food production (biscuit making) for Brand FB Ltd in 2009. Mr Dytkowski has a hearing impairment and was also diagnosed with insulin-dependent diabetes in March 2018. Mr Dytkowski alleged during the course of his employment:

On 7 August 2018 Mr Dytkowski was involved in an incident. He was concerned  about his blood sugar levels and  felt he needed a break.  He asked his supervisor, Egle Vaisutyte, to arrange this. It was unclear if the request for a break was refused or not but the result was Mr Dytkowski shouted at Egle Vaisutyte who then escalated the matter to Nick Bourne, the Production Manager. This was dealt with informally with Nick Bourne speaking to Mr Dytkowski about losing his temper, informing him that “you are more angry than you used to be.  “I don’t know why”  and “your temper comes quicker.” No formal disciplinary action was taken and  Mr Dytkowski  kept his clean disciplinary record.

On 4 December 2018 Mr Dytkowski arrived late for a team meeting. Another Process Operative, Mr Ulvenmoe, commented that everyone should be on time to which Mr Dytkowski took offence thinking the comment was directed at him. After the meeting Mr Dytkowski approached Mr Ulvenmoe, and either grabbed his clothes or pushed him and shouted at him in Polish. Loosely translated the words used were “say that to me again and I will smash your fucking face” and “now get out of my fucking face”.  The incident was over quickly and both of them returned to their work. Mr Ulvenmoe reported the incident to a manager, Ms Vaisutyte, and Mr Dytkowski was suspended. A disciplinary process was then instigated.

On 18 December 2018 Mr Dytkowski attended a disciplinary hearing conducted by Nick Bourne.  Mr Dytkowski stated at the meeting that he had simply “exploded” on 4 December and argued that his medical condition had made him more “sensitive” to comments made on the day of the altercation, resulting in his violent reaction to Mr Ulvemore. The occupational health nurse, Margaret Hornby, had helped arrange adjustments for Mr Dytkowsk, including breaks to check his blood sugar levels, regular eating times and time off to attend appointments. She arranged for him to attend a course to manage his condition (the Dose Adjustment for Normal eating (DAFNE) course) booked for January 2019.

Following the meeting, Mr Dytkowski sent copies of his daily blood sugar records which he kept for the purpose of monitoring his condition. Mr Bourne informed him he would discuss the matter with Margaret Hornby, and would get back to him in the New Year.

On 11 January 2019 the disciplinary hearing was reconvened. Mr Dytkowski informed Nick Bourne in this meeting that:

  • He had started CBT, that he did not want this to happen again, and felt he could learn from it
  • Spikes in his blood sugar (due to his pancreas stopping working) had caused his explosive reaction, and that his aggressive reaction had therefore been caused by his diabetes
  • He would improve and was hopeful about the DAFNE course.

Mr Bourne, although accepting Mr Dytkowski’s diabetes may have had an influence on his behaviour, decided that this amounted to gross misconduct. Mr Dytkowski was summarily dismissed without notice pay.

Mr Dytkowski appealed against the decision to dismiss him, arguing that his behaviour had been influenced by his diabetes, that CBT was helping him, and that he expected the DAFNE course to help him manage his condition. He also expressed regret for his actions.

On 11 February 2019, the appeal hearing was held which was chaired by Lee McLeod (Manufacturing Manager). Mr Dytkowski drew attention in this hearing to other disciplinary incidents that had happened at work where he argued a more lenient sanction was imposed in similar disciplinary circumstances. Mr McLeod rejected Mr Dytkowski’s points of appeal and upheld the dismissal by letter dated 13 February 2019.

Mr Dystkowski subsequently lodged claims of unfair dismissal and disability discrimination to the Employment Tribunal and a hearing took place on 28 October 2019.

The decision of the Employment Tribunal

The Employment Tribunal held as follow regarding the Claimant’s claims

Discrimination arising from disability

The Employment Tribunal found that Brand FB Ltd had subjected Mr Dytkowski to unfavourable treatment due to something arising from his disability (his diabetes) and that their response in dismissing him was disproportionate – they had failed to make more detailed investigations into the effect of his diabetic episode after accepting this may have influenced his behaviour.

Learn more about disability discrimination claims here

Unfair dismissal

The Employment Tribunal also found that Mr Dytkowski’s dismissal was unfair and that a final written warning would have sufficed. There had been a failure to investigate the link between his diabetes and the incident of 4 December 2018, which may have  enabled him ample  opportunity to find ways to manage his condition and behaviours, through the DAFNE course and CBT.

Learn more about the law relating to unfair dismissal here

Compensation

Mr Mr Dytkowski was awarded a total of £19,894.32 compensation for both claims.

Our lawyers’ view on Dytkowski v Brand FB Ltd

Steve Norton, a lawyer in the employment team at Redmans, commented on the case as follows: “Sadly this is yet another case where the employer has acted in haste to dismiss a loyal long-serving employee rather than allowing him the opportunity to manage his health condition and any behavioural issues. He had expressed severe regret for the incident and the ET found that a final written warning would have provided sufficient safeguards for improvement and a more proportionate response.”

The decision of the Employment Tribunal in Dytkowski v Brand FB Ltd ET/2402856/19 can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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