In the case of Wood v Durham County Council, the Employment Appeal Tribunal (EAT) held that a tendency to steal, which the employee claimed to be a manifestation of his post-traumatic stress disorder (PTSD) and associative amnesia, was not an impairment and therefore does not meet the definition of disability for the purpose of bringing a disability discrimination claim.
The Claimant worked for the Respondent as an Anti-social Behaviour Officer. He suffered from severe depression, PTSD and associative amnesia. Due to the Claimant’s role he was subject to the Respondent’s code of conduct which applied inside and outside of work, and he was required to be vetted to Non-Police Personnel Vetting (NPPV) Level 2 due to his close working relationship with the police.
During August 2015, the Claimant entered a Boots store and placed items into his personal shopping bag before leaving the store without paying. The police were called and the Claimant admitted that he had stolen items from the store. Before the police arrived the Claimant removed his works ID and placed it in his pocket. When asked about his occupation the Claimant lied and told the police that he worked in security and travelled from site to site. The Claimant was issued with a Penalty Notice for Disorder (PND) and was required to pay a fine of £90.
The Claimant did not inform the Respondent of the incident nor the fact that he had received a PND despite being required to under the Respondent’s code of practice.
The incident was later brought to the attention of the Claimant’s line manager when the Claimant’s NPPV application was refused as a result of the PND issued against the Claimant.
The Claimant’s line manager asked him if an incident had occurred outside of work that the Respondent ought to be made aware of, to which the Claimant replied “no”. The Claimant’s line manager then revealed what he knew about the incident in Boots, which prompted the Claimant to admit that he recalled the incident but that it was not his fault.
The Respondent carried out a disciplinary process and the Claimant was subsequently dismissed. The Respondent relied on the Claimant’s criminal conduct outside of the workplace and the risk of reputational damage.
The Claimant issued disability discrimination claims against the Respondent. He argued that his post-traumatic stress disorder and associative amnesia caused him to forget to pay for the items.
The Employment Tribunal (ET) rejected the Claimant’s discrimination claims. It accepted the Respondent’s position – whilst the Claimant’s post-traumatic stress disorder met the definition of disability under the Equality Act 2010, the behaviour for which he was dismissed was a manifestation of a ‘tendency to steal’ – an excluded condition and therefore not an impairment. As a result, his claim could not succeed.
The Claimant appealed to the EAT, however the EAT upheld the ET’s ruling. The EAT held that the ET had not erred in its decision and had been entitled to determine the Claimant’s dishonesty. The ET took into account the Claimant’s selective memory in his interview with his line manager, the Claimant’s admission to the police, his failure to report the incident to the Respondent, the removal of the ID lanyard before the police arrived and the fact the Claimant had placed items into his personal shopping bag.
The case serves as a helpful reminder that certain conditions are expressly excluded and therefore do not meet the definition of disability under the Equality Act 2010. In addition to a tendency to steal, a tendency to set fires, addiction to alcohol, nicotine and exhibitionism are some examples of other excluded conditions.
Employers should however be mindful that impairments (such as depression and anxiety) caused by an excluded condition might amount to a disability. Therefore, dismissing an employee for any resulting impairment (such as depression and anxiety) could give rise to a discrimination claim.
We suggest that when dismissing an employee in respect of an excluded condition, employers should make it clear that they are not dismissing for any underlying impairment (e.g. post-traumatic stress disorder this case). The Respondent’s reason for dismissing the Claimant was his criminal conduct outside of the workplace and the risk of reputational damage – not the Claimant’s underlying impairment.
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