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          Is a 'tendency to steal' excluded from the definition of a disability?

          In Wood v Durham County Council the Employment Appeal Tribunal (EAT) upheld the Tribunal's decision that the dismissal of an employee for shoplifting, which he claimed was a manifestation of his post-traumatic stress disorder (PTSD) and disassociate amnesia, did not amount to disability discrimination as it showed a 'tendency to steal', which is an excluded condition under the Equality Act 2010. 

          Date: 28/11/2018

          Background

          Mr Wood, worked for the Council as an Anti-Social Behavior Officer. He suffers from severe depression, PTSD and associative amnesia. His role was subject to a code of conduct which applied both inside and outside of work. He was vetted as part of his role.

          In August 2015, he went into a branch of Boots and left without paying for a number of items which he had placed in his bag. He was stopped by the store security and the police were called. He signed an admission stating he took the items with no intention of paying and paid a penalty notice. He also removed his Council ID before he met with the police and told them his job involved security and travelling a lot.  

          Before he paid the penalty notice, he consulted two solicitors who advised him that paying the penalty did not amount to an admission of guilt. 

          He did not advise the Council of this incident and when his vetting was updated, the incident came to the attention of his line manager. When he was asked about anything that had happened outside of work, he said there was nothing. 

          When the Council revealed that the vetting procedure had highlighted the incident, he accepted he could remember the incident but said it was not his fault. 

          After a lengthy disciplinary process the Council dismissed Mr Wood based on the criminal conduct, the withdrawal of the vetting clearance and the risk of reputational damage.  

          Mr Wood brought a discrimination claim. He argued that his PTSD and associative amnesia caused him to suffer from forgetfulness, which included forgetting to pay for items before leaving the shop. 

          The Council accepted that Mr Wood's PTSD meant that, on the face of it, he had a disability, however, it argued that the behavior for which he was dismissed, was a tendency to steal which was an excluded condition. 

          Decision

          The Tribunal rejected Mr Wood's claim, accepting the Council's argument about the excluded condition. It held that, applying objective standards, Mr Wood's conduct had been dishonest and the alleged discrimination was as the result of an excluded condition.

          Mr Wood appealed and the EAT dismissed the appeal, stating that the Tribunal had directed itself properly and on the evidence before it, was entitled to find that the events in August 2015 demonstrated that Mr Wood had a tendency to steal. 

          Comment

          The Equality Act 2010 contains a list of excluded conditions which do not count as impairments for disability discrimination purposes. This list includes a tendency to set fires, a tendency to steal and exhibitionism, amongst others. Although these conditions are excluded, there can still be tricky issues as to whether an employer's treatment of an employee is related to an excluded condition or not and it would be advisable for employers to obtain specific advice in such situations. 

          Authored by Sam Ponzini and Tim Scott

          Related people

          Tim Scott

          • Head of Employment (Liverpool) // Partner