Dismissal for a “tendency to steal” does not amount to disability discrimination
In Mr A Wood v Durham County Council, the Respondent Durham County Council had employed the Claimant, Mr Wood, for nine years, with his last role being that of an Anti-Social Behaviour Officer. Prior to his employment with the Council, Mr Wood had worked as a police officer for 19 years.
On 24 August 2015 Mr Wood left Boots with items which he had placed in his bag and not had not paid for. Mr Wood was accused of shoplifting and ultimately issued with a fixed penalty notice, which he paid. When approached by a Boots security guard, Mr Wood removed and hid his identification lanyard, and when questioned by the police, Mr Wood lied about his occupation.
Following the issue of the fixed penalty notice, Mr Wood failed to inform the Council of this incident, something which the Council’s code of practice required Mr Wood to do. In October 2015 Mr Wood’s Non Police Personnel Vetting Level 2 application was refused as a result of the fixed penalty notice, which effectively meant he was unable to perform his role. The incident of 24 August 2015 was brought to the attention of Mr Wood’s line manager who interviewed Mr Wood about the incident. When questioned about it, Mr Wood at first denied there was anything the Council should be made aware of, but then later conceded that the incident had happened but explained it was not his fault as he, and his consultant, believed he suffered from a disorder which affected his memory. Mr Wood was suspended pending a disciplinary investigation. The Council dismissed Mr Wood from its employment on 13 July 2016 .
Mr Wood brought a claim in the Employment Tribunal against the Council for disability discrimination and unfair dismissal. During the proceedings Mr Wood asserted that he had post-traumatic stress disorder and associated amnesia and memory loss which would cause him on occasion to be forgetful. This forgetfulness could lead him to, amongst other things, forgetting to pay for shopping items before leaving a store.
During the proceedings, an expert was instructed and concluded that Mr Wood suffered from severe depression, PTSD and associative amnesia.
Decision of the ET
Whilst it was conceded by the Respondent that Mr Wood had the mental impairment of PTSD when the incident on 24 August 2015 occurred, meaning that he fell within the definition of disability under section 6 of the Equality Act 2010, the ET ultimately dismissed the disability discrimination claim. The ET’s rationale relied on the conclusion that “a manifestation of [Mr Wood’s] post-traumatic stress disorder and dissociative amnesia was a tendency to steal which was an excluded condition pursuant to Regulation 4(1)(b) of the Equality Act 2010 (Disability Regulations 2010)”. The question of whether Mr Wood acted dishonestly on 24 August 2015 was a matter of fact for a jury, or in this case, an employment judge to determine.
Mr Wood subsequently appealed the ET’s decision.
Decision of the Employment Appeal Tribunal
The EAT held that the ET had correctly understood that it not only had to consider if Mr Wood had an excluded condition pursuant to Regulation 4(1)(b), but also how it related to the act of discrimination complained of.
It is accepted through the existing body of case law that “if the alleged discrimination was a result of an excluded condition, the exclusion will apply. However, if the alleged discrimination is specifically related to the actual disability which gives rise to an excluded condition or is more tangentially related, the exclusion may not apply”.
The EAT also held that the ET had correctly directed itself that the burden of proof to prove the condition was excluded rested with the Council and commented that it was a mixture of fact and law.
The EAT therefore upheld the ET’s decision and dismissed the appeal. The EAT concluded that the ET had not erred in “concluding that a manifestation of [Mr Wood’s] post-traumatic stress disorder and dissociative amnesia was a tendency to steal which was an excluded condition pursuant to Regulation 4(1)(b)”. The EAT also concluded that the ET had not erred in dismissing the complaint of disability discrimination as the effective cause of Mr Wood’s dismissal, i.e. the discriminatory treatment complained of, was the excluded condition.
The EAT did however comment that it was unfortunate that there was no dispute of the facts which led to Mr Wood’s dismissal.
Mr Wood’s claim for unfair dismissal is now to be listed before the ET for determination.