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Disability discrimination: Dismissal of a shoplifting employee with a tendency to steal

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The EAT, in Wood v. Durham County Council, confirmed that an employee’s “tendency to steal” was a manifestation of his disability and as such was an excluded condition under the Equality Act (Disability) Regulations 2010. The claimant’s disability discrimination claim was therefore dismissed.

Mr Wood was employed by Durham County Council as an Anti-Social Behaviour Officer. An essential requirement of the role was clearance at Non-Police Personnel Vetting (NPPV) Level 2.

In August 2015, Mr Wood was apprehended outside a branch of Boots for shoplifting. He signed a statement admitting to taking various items from the store with no intention of paying for them. When asked about his occupation by the police, he was dishonest and said he worked in security. He was subsequently issued with a Penalty Notice for Disorder and paid a £90 fine.

In October 2015, the council became aware of the incident after Mr Wood’s NPPV application was refused. He initially denied knowledge of the incident before admitting to recalling the incident but denied responsibility. Following a disciplinary process, he was dismissed.

Mr Wood brought claims for disability discrimination and unfair dismissal, arguing that his PTSD and associative amnesia caused him to forget both to pay for the items and to inform his line manager of the incident.

The council conceded that Mr Wood had a mental impairment of PTSD and was therefore disabled; however, the council argued he had a “tendency to steal”, a condition expressly excluded from the protection of the Equality Act 2010.

The ET agreed and held that Mr Wood could not bring a disability discrimination claim because his dismissal (the act of discrimination relied on) had been due to his tendency to steal, which excluded him from protection. On appeal, the EAT upheld the Tribunal’s decision.

This case highlights that, where the reason for the treatment complained of is the excluded condition, the individual will not be afforded protection under the Equality Act 2010 in relation to disability discrimination. As well as the “tendency to steal”, other express exclusions include the “tendency to start fires”, an addiction to alcohol, nicotine or any other substance, exhibitionism and voyeurism.