The EAT in Wood v Durham County Council has confirmed a ‘tendency to steal’ is not an impairment and therefore does not satisfy the definition of disability for the purposes of the Equality Act 2010.
Mr Wood worked for the Council and his role was subject to a code of conduct and a certain level of police vetting. Mr Wood suffered from depression, PTSD and associative amnesia.
Mr Wood was caught shoplifting outside of work and issued with a Penalty Notice for Disorder (PND) and a fine for £90. Some months following the incident, Mr Wood’s police vetting clearance was rejected. When questioned by his line manager, Mr Wood lied and confirmed that nothing had happened outside of work of which the Council need be aware. Mr Wood’s manager revealed that the police had informed the Council of his conviction for shoplifting. Following suspension and a disciplinary hearing, Mr Wood was dismissed for criminal conduct outside the workplace, withdrawal of his clearance and the risk of reputational damage to the Council.
Mr Wood subsequently brought claims for disability discrimination, arguing that his PTSD and associative amnesia caused him to forget to pay for the items.
The Tribunal rejected Mr Wood’s discrimination claims. Although Mr Wood’s PTSD amounted to a disability under section 6 of the Equality Act, the reason for the dismissal was not his PTSD but the issue of the PND, which was a consequence or manifestation of the ‘tendency to steal’. A ‘tendency to steal’ is expressly excluded from the definition of disability under the Equality Act 2010 and therefore such a claim could not succeed.
On appeal, the EAT upheld the Tribunal’s decision.
Hannah Ball comments:
“This case is a useful reminder that certain conditions are expressly excluded from being “impairments” for the purposes of the definition of disability under the Equality Act 2010.
Even in cases where an employee has an excluded condition, there could be underlying causes capable of amounting to a disability. Employers should, therefore, take appropriate steps, including obtaining updated medical advice, before disciplining employees for matters connected with excluded conditions. If you would like any further advice regarding disciplinary or disability issues, please get in touch with a member of the team."
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