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Wood you have paid?

BY Paman Singh
Employment Law & HR

Mr Wood worked for Durham County Council and his role was subject to a code of conduct, which required a certain level of clearance to be met. Mr Wood suffered from depression, post-traumatic stress disorder and associative amnesia.

One day, he went shopping and placed a number of items into his shopping bag then left the store without paying for them. The store’s security staff telephoned the police. Mr Wood signed an admission stating that he took the items with no intention of paying for them. Subsequently, Mr Wood was issued with a Penalty Notice for Disorder. He also paid a £90 fine.

Some two months following the incident, the clearance required by Mr Wood’s employer was refused. His line manager asked him whether anything had happened outside of work of which the County Council should be aware. Mr Wood replied ‘no’. His line manager then revealed what he knew about the incident in Boots, which prompted Mr Wood to admit that he recalled the incident but that it was not his fault.

Mr Wood was dismissed. The County Council relied on Mr Wood’s criminal conduct outside of the workplace and the risk of reputational damage.

Mr Wood subsequently brought claims for disability discrimination, arguing that his post-traumatic stress disorder and associative amnesia caused him to forget to pay for the items.

The tribunal rejected Mr Wood’s discrimination claims. It accepted the County Council’s position, namely that whilst Mr Wood’s post-traumatic stress disorder met the definition of disability under the Equality Act 2010, the behaviour for which he was dismissed was a manifestation of a ‘tendency to steal’ – an excluded condition and not an impairment.

Mr Wood appealed and the EAT upheld the Tribunal’s decision. It focused on whether the incident in Boots demonstrated a tendency to steal or a tendency to memory loss and forgetfulness. It concluded that the incident demonstrated a tendency to steal. As a result, it was not an impairment for the purposes of the definition of disability under the Equality Act 2010. In addition, the EAT concluded that the tribunal was entitled to find that Mr Wood was dishonest. It had particular regard to his admission to the police and his selective memory when answering questions from his line manager.

This case is a reminder that certain conditions are expressly stated not to be impairments, and therefore do not meet the definition of disability under the Equality Act 2010. In addition to a ‘tendency to steal’, a ‘tendency to set fires’, addiction to alcohol and nicotine and exhibitionism are some examples of other excluded conditions.

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