Certain conditions are excluded from protection against claims of disability discrimination, including a “tendency to steal”. In Wood v Durham County Council, the Employment Appeal Tribunal (EAT) held that the tribunal was right to conclude, on the evidence, that the claimant had been dishonest rather than forgetful, meaning that his claim fell within the exclusion.
Mr Wood was an Anti-Social Behaviour Officer for the Council, a position which required being vetted to Non Police Personnel Vetting (NPPV) Level 2. In August 2015 he went into a local Boots store and placed some items in a carrier bag that he had brought with him. He then left without paying. When approached by the store’s security guard, he concealed his Council ID and said that he worked in security, “travelling from site to site”. He admitted the offence and signed the notes of the police officer who had been called.
A day after he was issued with a penalty notice for disorder (PND), he consulted two separate solicitors to obtain advice as to whether he should pay the fine. He was advised that it did not constitute an admission of guilt and he therefore paid it in mid-September. However, he did not tell the Council nor did he formally report the matter to the police.
In October his NPPV was refused as a result of the PND. As this meant he could not enter any police premises, he could not effectively do his job. Although Mr Wood initially denied the incident when asked about it by his line manager, he then admitted that he could remember it but that that he had post-traumatic stress disorder (PTSD) which affected his memory and could result in him forgetting to pay for items before leaving a shop.
After being dismissed he brought a number of different claims including discrimination “arising in consequence of his disability” under section 15(1)(a) of the Equality Act. The Council accepted that he had an impairment (PTSD) which had a substantial, long-term and adverse effect on his ability to carry out normal day-to-day activities. However, as a “tendency to steal” was an excluded condition under Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010, it argued that his claim could not succeed.
In order to decide whether the shoplifting incident in August had been triggered by a tendency to steal or a tendency to memory loss and forgetfulness, the tribunal considered the following points:
- That Mr Wood had placed the items in his own shopping bag
- That he left the store without paying for them
- That he removed his Council ID when apprehended by store security and lied about his job
- That he spoke to two different solicitors the following day
- That he failed to report the matter to his employer and the police
- When asked about the incident by his manager, he denied it.
Drawing those points together and “applying the objective standards of [an] ordinary, reasonable and honest person armed with all the information”, the tribunal concluded that Mr Woods’ conduct had “to be regarded as dishonest”, making it an excluded condition under the Equality Act.
The EAT held that the tribunal was entitled, on the basis of the evidence, to reject Mr Woods’ argument that his behaviour was not dishonest, but rather that it manifested itself in a tendency to steal, an excluded condition. Since the effective cause of his dismissal (the stealing) was the excluded condition, it followed that the tribunal was right to reject the complaint of disability discrimination.
The courts have held that the question of dishonesty is a jury question of fact and standards and that it is ultimately for the court to decide whether conduct amounted to in this case theft, and that the standard is objective.