An employee was dismissed for a tendency to steal, which is excluded from being a "disability" under the legislation. He could not therefore claim disability discrimination.
Discrimination legislation lists several conditions that will not be treated as "disabilities". These excluded conditions include a tendency to steal.
Mr Wood was employed by Durham County Council. The Council considered honesty and integrity important to his role. In August 2015, he was caught leaving Boots the Chemist without having paid for items he had put in his shopping bag. The police were involved. He lied about his job to the police, and removed his work identity card from his wallet so it would be not be found when he was being searched. He signed a written admission that he had taken the items without any intention of paying for them and he was issued with a formal fixed penalty notice, to which he agreed, as an alternative to a formal prosecution for theft. He did not tell the Council what had happened. However, the Council found out.
Mr Wood's line manager asked him a series of questions which were designed to elicit information from him about the Boots incident. Mr Wood did not own up to the incident. His line manager then specifically asked about the incident, and Mr Woods admitted that he could remember it, but said it could not have been his fault. He said that he had been seeing a consultant for post-traumatic stress disorder over the past 18 months as they thought he had a disorder that affected his memory. Following a prolonged disciplinary process, he was dismissed, and his internal appeal was also dismissed.
Mr Wood brought claims for unfair dismissal and disability discrimination. A preliminary hearing was held for the tribunal to decide whether Mr Wood could bring a disability discrimination claim: if he had been dismissed because of a tendency to steal, this would have been an excluded condition, meaning that he could not bring the disability discrimination claim.
The employment tribunal, and on appeal the EAT, held that Mr Woods had been dismissed because of a tendency to steal. Mr Wood argued that he did not have a tendency to steal – "tendency" would imply multiple occasions, but this was an isolated incident. He also said that theft requires dishonesty and intent, and when he was in a dissociative state (caused by his disability) he was incapable of being dishonest or forming intent. He characterised his actions as being due to a tendency to forgetfulness and memory loss.
The EAT and employment tribunal disagreed with Mr Wood's arguments. Mr Wood had always put his case on the basis that this was not a one off, but that his actions were part of his condition and a manifestation of his post-traumatic stress disorder. On the facts of this case – including the fact that he signed a statement confirming his admission of stealing, together with his behaviour in the days after the incident, and his "self-serving" selective memory in the interview with his line manager - and applying the correct test of whether Mr Wood's conduct had been honest or dishonest according to the objective standards of ordinary, decent people, Mr Wood's conduct was to be regarded as dishonest.
What this means for employers
Employers taking action against employees whom they consider suffer from an excluded condition should consider carefully whether the reason for the treatment of the employee is the excluded condition (in which case the employee will not be protected by discrimination legislation) or whether there is a risk that the treatment is because of another aspect of the underlying condition (for example, PTSD).