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The Employment Appeal Tribunal upheld the Employment Tribunal’s decision in Wood v Durham County Council that the dismissal of an employee for shoplifting, which he claimed to be a manifestation of his post-traumatic stress disorder (PTSD) and associative amnesia, was not disability discrimination.
Mr Wood was employed by Durham County Council (the Council) as an Anti-Social Behaviour Officer. He had previously worked as a police officer for 16 years.
Mr Wood’s role was subject to the Council’s Code of Conduct which required its employees to act with honesty and integrity and provided that breaches of the Code were serious matters that could result in disciplinary action, up to and including dismissal.
On 24 August 2015, Mr Wood visited a branch of Boots and left the store without paying for some items, which he had placed in his own shopping bag. He was stopped by a security guard and the police was called.
Mr Wood removed his Council ID and, when asked about his occupation, he said he worked in security. He signed an admission that he had no intention of paying for the items and was given a fixed penalty notice for disorder (PND).
Around two months later, Mr Wood’s Non-Police Personnel Vetting application was refused due to the PND. He was, as a result, immediately refused entry into any Police premises preventing him from being able to do his job.
Mr Wood’s Line Manager asked him if there was anything outside work that the Council should be made aware of to which Mr Woods replied “no”. The Line Manager explained that the Police had provided information about the shoplifting incident and the PND. Mr Wood accepted he could remember the incident but he said that it had not been his fault.
After a lengthy disciplinary process, Mr Woods was dismissed as a result of criminal conduct outside the workplace and removal of his Non-Police Personnel Vetting clearance and the impact of his conduct on the Council’s reputation.
Mr Wood brought claims for disability discrimination. He argued that he had PTSD and associated amnesia and memory loss causing him to forget to pay for items when leaving a shop.
Employment Tribunal decision
The Employment Tribunal rejected Mr Wood’s disability discrimination claims and accepted the Council’s argument that Mr Wood was dismissed for shoplifting which was a manifestation of a tendency to steal and was therefore excluded.
Mr Woods appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal decision
The EAT dismissed the appeal and held that the Tribunal had been entitled to conclude that Mr Wood had a tendency to steal. Further, the EAT concluded that the Tribunal was entitled to find Mr Wood had been dishonest particularly in light of the admission that he had made to the Police and his self-serving selective memory in the interview with his Line Manager.
This case is a reminder that the Equality Act 2010 sets out that there are certain conditions which are not impairments:
As a result, they do not meet the definition of disability.
Employers should, however, remember that any impairments caused by an excluded condition could still amount to a disability. Employers who are therefore dismissing employees who have an excluded condition should make it clear that dismissal is for the excluded condition and not their underlying medical condition.
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