In a preliminary hearing in the case of Wood v Durham County Council the Employment Appeal Tribunal has considered whether an employee who was dismissed for admitted shoplifting could bring a disability discrimination claim. The ‘tendency to steal’ is an excluded condition which means that the claimant was deemed not to be disabled and therefore had no protection under the Equality Act 2010.
Mr Wood worked as an antisocial behaviour officer employed by Durham County Council In order to carry out this role, it was essential that he had Non-Police Personnel Vetting clearance (NPPV).
On 24 August 2015, Mr Wood stole a sandwich, some deodorant and some sun cream from a branch of Boots. He was stopped by the security guard on the way out of the shop and the police were called. When he was apprehended, he hid his Council ID badge and lied about his job. He formally admitted the theft and was given a fixed penalty notice for disorder (PND). He did not inform his employer about this incident.
In October 2015, Mr Wood’s NPPV application was refused due to the PND. He lied when initially questioned by his manager about what had happened. When asked about the specific incident, Mr Wood said that it was not his fault and suggested it was because of a disorder affecting his memory.
Following a lengthy disciplinary procedure, Mr Wood was dismissed. He brought several claims for disability discrimination. A joint expert found that he suffered from PTSD, associative amnesia and depression. He claimed that this sometimes caused him to be forgetful and this was why he had failed to pay for the items in Boots. The Council argued that he was dismissed because of a ‘tendency to steal’, was therefore deemed not to be disabled and excluded from the protection under the Equality Act 2010.
The Employment Tribunal found that Mr Wood had been dismissed due to a tendency to steal and could therefore not bring any disability discrimination claims. This was so regardless of the fact that this tendency was a manifestation of his disability. Mr Wood appealed on the basis that a one-off incident could not amount to a tendency and that he had not intended to be dishonest, his actions were caused by his disability.
The Employment Appeal Tribunal rejected Mr Wood’s appeal. It held that Mr Wood had been dishonest and had been dismissed because of a tendency to steal. He therefore fell within the excluded conditions and was deemed not to be disabled.
Before conceding disability in a case, employers should ensure that they have considered whether any of the excluded conditions apply, as this significantly reduces the protection for employees where the manifestation of a disability falls within an exclusion.
This case endorses the approach taken in two other cases which considered the scope of excluded conditions. The first was about the tendency to exhibitionism; the second about the tendency to physical abuse, both excluded conditions under the Equality Act 2010. Although the claimants in each case had an underlying disability, both failed in their disability discrimination claims because the manifestation of their disability was an excluded condition and their treatment was on the basis of the exhibitionism and physical abuse, not the underlying disability.
This case leaves a number of questions unanswered. Firstly, there was no guidance given about what constitutes a ‘tendency’. In this case, Mr Wood had only stolen items on one occasion, so it is surprising that this could amount to a ‘tendency to steal’.
Secondly, there was no analysis in this case of the claim brought by Mr Wood for discrimination arising from disability. In theory, Mr Wood should perhaps have been able to support this claim on the basis that he was disabled and the reason for the dismissal did arise out of this disability, leaving his employer to seek to objectively justify the treatment. We will need to wait for a further case on this topic to see if this is a way around the excluded conditions for claimants.
We would also expect to see in the future more arguments about whether stealing which is caused by a disability has all the essential characteristics of theft for the purposes of criminal law. It may be possible to argue that there is not the requisite degree of intention.