Employment Law Speed Read – 03/12/18
3rd December, 2018
In Wood v Durham County Council, the Employment Appeal Tribunal (EAT) affirmed the decision of the Employment Tribunal (ET) which held that a 'tendency to steal' was an excluded condition under the Equality Act (Disability) Regulations 2010. As such, the Claimant's disability discrimination claim could not succeed.
Mr Wood was employed by Durham County Council as an Anti-Social Behaviour Officer and had worked at the Council for nine years. Throughout this time, Mr Wood had not been subjected to any disciplinary proceedings.
On 24 August 2015, Mr Wood was shopping at Boots Chemist; Mr Wood placed various items in his bag and left the store without paying for the items. Mr Wood was apprehended by the police and was issued a Penalty Notice for Disorder and a £90 fine.
As a public sector employee, Mr Wood had a duty to act with honesty and integrity, both inside and outside of work. Mr Wood’s role also required a certain level of clearance. In October 2015, Mr Wood’s Non Personnel Vetting Level 2 application was refused as a result of the Penalty Notice for Disorder. Following a lengthy disciplinary process, Mr Wood was dismissed.
Mr Wood brought a claim in the ET alleging disability discrimination. Mr Wood argued that his post-traumatic stress disorder (PTSD) and dissociative amnesia had caused him to forget to pay for the items. As such, his behaviour was not dishonest and was something arising from his disability.
The ET rejected Mr Wood’s disability discrimination claim. It was accepted that Mr Wood suffered from PTSD and that this had a substantial, long-term adverse effect on his ability to carry out normal day-to-day activities. This therefore, on the face of it, satisfied the definition of disability as set out in Section 6 of the Equality Act 2010 (the Act).
However, the ET held that because the behaviour for which Mr Wood had been dismissed was a ‘tendency to steal’, this was an excluded condition under Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010 and therefore did not constitute an ‘impairment’ under the Act. As a result, Mr Wood’s disability discrimination claim failed.
Mr Wood appealed to the EAT.
Employment Appeal Tribunal
The EAT found in favour of Durham County Council and dismissed Mr Wood’s appeal. They found that the ET had not erred in concluding that Mr Wood had a ‘tendency to steal’, which is not an impairment within the definition of disability under the Act. Further, the EAT held that the ET was entitled to reject Mr Wood’s contention that his behaviour was not dishonest. Consequently, they were correct to dismiss Mr Wood’s disability discrimination claim.
This case highlights that certain conditions are expressly excluded from the protection of the Equality Act 2010. However, it should be noted that impairments caused by an excluded condition may still satisfy the definition of disability, and therefore may give rise to a disability discrimination claim.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.