Discrimination: Excluded conditions
Friday 14th December 2018
In Wood v Durham County Council the EAT considered whether an employee demonstrated the excluded condition of a ‘tendency to steal’.
Discrimination which relates to certain protected characteristics, including disability, is unlawful. ‘Disability’ is any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
Certain conditions are excluded, meaning they do not amount to an impairment within this definition, for example a tendency to set fires, or an addiction to alcohol. For the purposes of the present case, a tendency to steal is also excluded.
Mr Wood suffers from depression, post-traumatic stress disorder (‘PTSD’) and dissociative amnesia. He worked for the Durham County Council (the ‘Council’) in a role that required Non Police Personnel Vetting (‘NPPV’). While out shopping, he left a Boots store without paying for four items, which led to him being issued with a £90 Penalty Notice for Disorder by the police.
Several months later, Mr Wood’s line manager became aware of the situation when Mr Wood’s NPPV clearance was refused. Mr Wood was dismissed, with the Council citing criminal conduct outside of the workplace, withdrawal of NPPV clearance, and the risk of reputational damage.
Mr Wood argued that his PTSD and amnesia left him prone to forgetfulness, including forgetting to pay for the items in question, and that the Council had discriminated against him by dismissing him unfairly. The Council accepted that Mr Wood was disabled, but argued that a tenancy to steal was not protected by legislation.
Decision and comment
The EAT focussed on whether Mr Wood’s actions in Boots had demonstrated a tendency to forget (to pay for the items as he claimed), or a tendency to steal. It ruled that a manifestation of his PTSD and dissociative amnesia was a tendency to steal. Accordingly, the claim was in relation to an excluded condition and could not succeed.
The case demonstrates the fine line that exists where the manifestation of an impairment occurs in a way which could be classed as an excluded condition. Where the foundation of the complaint is an excluded condition, the individual will lose protection against disability discrimination.
It is established that an impairment caused by an excluded condition could still amount to a protected disability, for example, depression arising from alcohol abuse may be a disability. On this point employers should exercise caution in ensuring that the reason for dismissing an employee is the excluded condition (stealing), and not the underlying medical condition (PTSD).