28 Nov 2018

In Wood v Durham County Council (UKEAT/0099/18), the Employment Appeal Tribunal had to decide whether the dismissal of an employee for shoplifting, which was caused by PTSD and associated amnesia, was disability discrimination.

Facts

Mr Wood worked for Durham County Council (the Council) as an anti-social behaviour officer. He had nine years' unblemished service and had previously worked as a police officer for 17 years. He was subject to a code of conduct that applied inside and outside work, and required vetting to Non Police Personnel Vetting (NPPV) Level 2. Mr Wood suffered from severe depression, PTSD and associated amnesia.

He went into a branch of Boots in Durham and left without paying for four items, which he had put into his own shopping bag. He was stopped outside the store by security staff, who called the police. Mr Wood signed an admission stating that he took the items and did not intend to pay for them. He had removed his Council ID when the security staff approached him and said he worked in security when asked about his occupation, which was untrue. He was issued with a Penalty Notice for Disorder (PND) and a £90 fine. He consulted two solicitors and was told that paying the fine was not an admission of guilt. He did not report the matter to the Council.

Shortly afterwards, Mr Wood's NPPV clearance was refused, which meant he was unable to do his job. His line manager asked Mr Wood if anything had happened outside of work that he should be aware of and Mr Wood said 'no'. The line manager stated that the police had provided information about the shoplifting incident and the PND. Mr Wood said he could remember the incident but it was not his fault. Following a disciplinary process, Mr Wood was dismissed for criminal conduct outside the workplace, withdrawal of NPPV clearance and the risk of reputational damage to the Council. His appeal was dismissed.

Mr Wood brought claims for unfair dismissal, indirect disability discrimination, discrimination arising from disability and failure to make reasonable adjustments. He argued that his PTSD and associated amnesia caused him to suffer from memory loss, including forgetting to pay for items before leaving a shop. The Council accepted that he was disabled under the Equality Act 2010 (the Act) but argued that a tendency to steal was an excluded condition under the Equality Act (Disability) Regulations 2010 (the Regulations), which meant that it did not constitute an impairment under the Act.

Employment tribunal decision

The employment tribunal (ET) rejected Mr Wood's disability discrimination claims and accepted the Council's argument that Mr Wood was dismissed for shoplifting, which was a manifestation of a tendency to steal and was therefore excluded. Mr Wood's conduct had been dishonest and the ET was satisfied that the alleged discrimination was the result of the excluded condition of a tendency to steal. The unfair dismissal claim was left to be decided at a further hearing. Mr Wood appealed.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal dismissed Mr Wood's appeal. It held that the ET was entitled to decided that Mr Wood had a tendency to steal - as opposed to a tendency to memory loss and forgetfulness – which was excluded from protection under the Act. It was clear to see from the evidence why the ET found Mr Wood to be dishonest.

Comment

Various conditions are set out in the Regulations and are expressly stated not to be impairments. This means that they are not disabilities for the purposes of the Act. They include:

  • Addiction to nicotine, alcohol or any other substance
  • A tendency to set fires or to steal
  • A tendency to physical abuse of other people
  • Exhibitionism and voyeurism
  • Tattoos and body piercings; and
  • Hay fever.

Although these conditions are excluded from protection under the Act, an impairment caused by any of them might amount to a protected disability. For example, in Power v Panasonic [2003] IRLR 151 the EAT held that depression caused by alcohol abuse was not prevented from being a disability. Employers therefore need to be careful when dismissing an employee with an excluded condition and to make it clear that the reason for the dismissal is the excluded condition and not the underlying medical condition. If the alleged discrimination is related to the disability that gives rise to an excluded condition, the exclusion may not apply.