Employment Law Update - Disability discrimination: tendency to steal


18 December 2018

The Employment Appeal Tribunal (EAT) has considered whether an individual dismissed for shoplifting, which he claimed to be a manifestation of his post-traumatic stress disorder, had been subjected to disability discrimination. 

Wood v Durham County Council, UKEAT/0099/18

Facts

Mr Wood was employed by the Council as an Antisocial Behaviour Officer. He was dismissed after an incident where he was caught shoplifting. 

As his role involved working in close partnership with the police, Mr Wood was subject to clearance at Non-Police Personnel Vetting (NPPV) Level 2. He was also subject to the Council’s code of conduct, which requires its employees to act with honesty and integrity.

Mr Wood was stopped by a security guard after leaving a shop without paying for several items. The police were called and Mr Wood was issued with a fixed penalty notice for disorder (PND). He had not informed the police that he worked for the Council, and he did not disclose the incident to the Council. His NPPV application was later refused and the incident came to the attention of his employer. Following a disciplinary hearing, Mr Wood was dismissed due to criminal conduct outside the workplace, withdrawal of NPPV clearance and the risk of reputational damage to the Council. 

Mr Wood brought claims for disability discrimination on the grounds that he suffered from severe depression, post-traumatic stress disorder and associative amnesia. He argued that his amnesia meant that he had forgotten to pay for the items in the shop. The employment tribunal rejected Mr Wood’s claims, accepting the Council’s argument that the behaviour for which he was dismissed (theft) was a manifestation of a tendency to steal, which was an excluded condition for the purposes of disability discrimination. Mr Wood appealed to the EAT.

EAT decision

The EAT dismissed Mr Wood’s appeal. It agreed with the tribunal’s conclusion that the evidence suggested a tendency to steal rather than merely a tendency to memory loss and forgetfulness. This conclusion was supported by the statement he signed admitting to the theft of the items and also the fact that he had attempted to conceal the truth from the Council.

Consequences

This case provides a useful example of the circumstances where it is not the underlying condition that has resulted in the treatment complained of (the dismissal), but instead the excluded condition – even though this was, apparently, caused by the underlying disability. It also raises the question of what is meant by a ‘tendency to steal’? Is a one-off incident enough for the behaviour to amount to a ‘tendency’, or does it have to be a course of conduct? There has been little in the way of any guidance on this point. It seems that the EAT accepted in its decision that the single incident which resulted in the individual’s dismissal was sufficient to show a tendency to steal, but this might be disputed in a future case.

The content of this article is for general information only. For further information please contact Liz Stevens or a member of Birketts' Employment Law Team.

This article is from the December 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at December 2018.

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