Is your disciplinary process fit for purpose?

When a long serving employee suddenly finds themselves the subject of disciplinary action in the workplace, would your process effectively identify any mitigating relevant circumstances or underlying health conditions that could have a bearing on the outcome of investigations?  

The case of Dytkowski v Brand FB Ltd demonstrates how an inadequate process can result in a successful claim of unfair dismissal on the grounds of disability discrimination.

In this case, biscuit factory worker Mr Dytkowski, who had worked at the Respondent since 2009, was dismissed on 11 January 2019, following a misconduct incident which took place on 4 December 2018.

Mr Dytkowski claimed that he had threatened a colleague after going into a ‘diabetic rage’, which underpinned his dismissal on grounds of gross misconduct. On the basis that his temper was ‘caused by his health condition’, Mr Dytkowski brought a claim for unfair dismissal which succeeded at tribunal. 

At a disciplinary hearing on 18 December 2018, Mr Dytkowski explained that he had ‘exploded’ and that his diabetes had affected his behaviour. Evidence of his blood sugar levels was requested and provided by the Claimant after the meeting. This was found to show evidence of high readings around the time of the incident. At a further disciplinary hearing on 11 January 2019, Mr Dytkowski stated that he had started CBT and that he did not want this to happen again and felt he could learn from it. He repeated his argument that his pancreas had stopped working and that his blood sugar had been spiking leading to his explosive reaction.

At the end of the disciplinary meeting the Respondent  felt that the diabetes had had an influence on Mr Dytkowski’s behaviour, but in the circumstances still believed that Mr Dytkowski had not done enough to make his employer aware that he was struggling with his health condition, beforehand. Accordingly, Mr Dytkowski’s actions were found to amount to gross misconduct, such that he was a summarily dismissed and no notice payment was paid to him.

The tribunal ruled that there should have been a more proportionate approach, such as a final written warning, particularly given the Claimant’s long service. It was deemed that a dismissal was not justified in the circumstances and was therefore unfair.

Comment

This case shows how important it is to take all the circumstances into account when deciding the level of sanction to be given following a disciplinary hearing. In this case, the decision to dismiss was disproportionate, not least because Mr Dytkowski had made it clear that he felt his medical condition had influenced his behaviour to a significant degree. This alone should have been enough to result in a lesser sanction than dismissal, but notwithstanding that, Mr Dytkowski had proved his real desire to seek help though CBT treatment, to (in his words) “make sure it didn’t happen again”.

In many situations in the workplace, employees are not as open about the reasons for their behaviour, or perhaps do not make the link themselves. When dealing with a member of staff who as given many years of service without incident, a careful and considered approach should ensure any potentially extenuating circumstances have been taken into account. The investigation element of the process is therefore crucial: the investigator needs to plan the process, identifying the issues and what further information including circumstantial information, that might prove necessary in order for the process to be fair and reasonable.