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28 January 2019

143: Employee with a tendency to steal could not bring disability discrimination claim

The Equality Act 2010 (Disability) Regulations 2010 identifies certain conditions which are excluded from being a disability for the purposes of the Equality Act 2010.

Case law has established that these conditions are excluded even if they result from an underlying physical or mental impairment which does qualify as a disability under the Equality Act. These excluded conditions include a ‘tendency to steal’. In Wood v Durham County Council, the Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s decision that an employee who was dismissed for shoplifting had a mental impairment which manifested itself in a tendency to steal and was therefore excluded from bringing a disability discrimination claim.

Mr Wood was employed by Durham County Council as an Anti-Social Behaviour Officer. He suffers from post-traumatic stress disorder (PTSD), associative amnesia and depression. Mr Wood was stopped by a security guard after leaving a shop without paying for several items. He signed an admission that he had no intention of paying for the items and was given a fixed penalty notice for disorder. As a result of this incident, Mr Wood’s police clearance was refused. Since it was a condition of his employment that he had police clearance, this meant that he could not perform his role. Following disciplinary proceedings, he was dismissed by the Council.

Mr Wood subsequently brought various claims including claims for disability discrimination. He argued that when he placed the goods in his bag, rather than being dishonest, he was in a dissociative state caused by his PTSD and amnesia, and that he had therefore been dismissed due to something arising from his disability. The Council conceded that Mr Wood’s PTSD was a mental impairment which amounted to a disability under the Equality Act. However, it argued that Mr Wood’s dismissal was due to the shoplifting incident. Since this demonstrated a tendency to steal, he was excluded from bringing a claim. A preliminary hearing was held to determine this issue.

The Employment Tribunal had to consider whether the shoplifting incident demonstrated a tendency to steal or just a tendency for forgetfulness. The test was whether an ordinary, reasonable and honest person with access to all of the evidence would conclude that Mr Wood had been dishonest. It was noted that Mr Wood had signed a statement admitting the theft, lied about his job to store security, failed to inform the Council and the police about the incident, and initially denied doing anything which could have resulted in refusal of his police clearance. The Tribunal concluded that Mr Wood’s conduct was dishonest. It also held that his mental impairment manifested itself in a tendency to steal which was the reason for his dismissal. Since this was an excluded condition, he could not claim disability discrimination. The EAT agreed with this reasoning and dismissed Mr Wood’s appeal.

Other excluded conditions include a tendency to set fires, a tendency to physically abuse other people, exhibitionism and voyeurism. As this case confirms, the exclusions will apply if the condition arose as a consequence of, or a manifestation of, an impairment which is a disability for the purposes of the Equality Act. However, the exclusions will not apply if the disability giving rise to the excluded condition is the reason for the discrimination. It is therefore vital to determine the precise reason for any alleged discrimination and to obtain expert medical evidence where appropriate.

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