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Disability Discrimination and a Tendency to Steal

on Friday, 30 November 2018.

We take a look at a recent case where an employee claimed he was discriminated against because his theft from a shop was caused by, or was related to, his disability.

Wood v Durham County Council

Mr Wood was employed by Durham County Council as an Anti-Social Behaviour Officer. Mr Wood suffers from severe depression, post-traumatic stress disorder and associative amnesia. On 24 August 2015, he went into Boots and put several items into his shopping bag and left without paying. He was apprehended and issued with a Penalty Notice for Disorder (PND) following signing an admission. As a result of the PND he did not obtain a specific police clearance required to allow him to perform his role, and was dismissed by the Council following a disciplinary process.

Mr Wood brought a claim for disability discrimination arguing that he had taken the goods because of his post-traumatic stress disorder. He stated that when he had placed the goods in his bag he was in a dissociate state and was not being dishonest. Mr Wood therefore argued that he was dismissed because of something arising out of his disability.

Legal Background

The Equality Act 2010 prohibits disability discrimination in employment. The Equality Act 2010 (Disability) Regulations 2010 (the Regulations) identify certain conditions which are excluded from being a disability for the purposes of the Equality Act 2010. One of these excluded conditions is the tendency to steal.

At a Preliminary Hearing, the Employment Tribunal (ET)  considered whether or not Mr Wood had a tendency to steal and whether it was this tendency to steal that was the reason for his dismissal.

The ET Decision

The ET accepted that Mr Wood was disabled. It rejected Mr Wood's disability discrimination claim, however, on the basis that the theft that gave rise to dismissal arose as a result of an excluded condition (a tendency to steal). In deciding whether or not Mr Wood's actions on the 24 August 2015 showed that he had a tendency to steal, or just demonstrated a tendency for memory loss, the ET asked itself whether an ordinary, reasonable and honest person with access to all of the evidence would conclude that Mr Wood was dishonest.

In deciding what an ordinary person would consider dishonest the ET highlighted certain accepted facts, including that Mr Woods had:

  • put the goods in his bag
  • removed his Council ID when he was apprehended by the store security
  • lied when he was asked where he worked
  • visited two solicitors to request advice on whether paying the fixed penalty notice was an admission of guilt
  • not reported the matter to his employer despite being aware that it could have an impact on his employment. When questioned by the Council as to why his police clearance had not been passed, Mr Wood said that he did not know

Ultimately the ET found that Mr Wood did have a mental impairment which manifested itself in a tendency to steal. It was Mr Wood's tendency to steal which has resulted in his dismissal. As the alleged discriminatory treatment was as a result of an excluded condition, Mr Wood was prevented from claiming disability discrimination.

On appeal the Employment Appeal Tribunal upheld the decision of the ET and dismissed the appeal.

Best Practice

Although it was determined in this case that Mr Wood did have a tendency to steal and therefore had an excluded condition, the ET's analysis shows that the same decision may not be reached in every instance where an employee alleges their stealing is a manifestation of a disability and the facts do not point to dishonesty. If an employee has a tendency to take things as a symptom of a disability, because of forgetfulness, it may be that a decision to dismiss in those circumstances might be discriminatory. 

The case illustrates the importance of a thorough disciplinary investigation, and analysis of the reasons behind an employee's behaviour or conduct.

For further information on employment issues, please contact Mark Stevens in our Employment Law team on 0117 314 5401.