Under the Equality Act (Disability) Regulations 2010 (the “Regulations”), a number of conditions are said not to be impairments. This means that they are not disabilities and do not therefore receive protection under the Equality Act (the “Act”). One of these conditions is a ‘tendency to steal’.
In the recent case of Wood v Durham County Council, the Claimant suffered from PTSD and associative amnesia. Unfortunately for the Claimant, he was dismissed by the Council when he was caught stealing from Boots. In bringing claims for unfair dismissal and disability discrimination, he sought to argue that his PTSD and associated amnesia caused him to suffer from memory loss (including forgetting to pay for items before leaving a shop). Whilst the Council accepted the Claimant was a disabled person, it argued that a ‘tendency to steal’ was an excluded condition under the Regulations and therefore he was not entitled to protection under the Act.
The Tribunal accepted the Council’s argument. It found that the Claimant had been dishonest and was satisfied that the alleged discrimination was the result of the excluded condition of a tendency to steal. The Employment Appeal Tribunal rejected the Claimant’s subsequent appeal. The question it found itself asking was whether the events which had led to the Claimant’s dismissal showed that (a) he had a tendency to steal or (b) merely a tendency for memory loss and forgetfulness. It held that the Tribunal had been entitled to decide that it was (a) and, from the evidence, it was clear to see why it had found he had been dishonest. Although the tendency to steal arose from the Claimant’s other disabilities, it was excluded from protection under the Act.
The case demonstrates the need for employers to act with care when dismissing an employee with an excluded condition and the importance of making it clear that the reason for the dismissal is the excluded condition and not the underlying medical condition.