Dismissal for ‘tendency to steal’ ruled to be fair

In the case of Wood v Durham County Council, the Employment Appeal Tribunal (EAT) were asked to determine if the decision to dismiss an employee with post-traumatic stress disorder (PTSD) for theft was discriminatory.

In this case the employee, Mr Wood, worked as an Anti-Social Behaviour Officer for Durham Council. Wood suffered from PTSD and dissociative amnesia and on one occasion he was caught leaving a Boots store without paying for certain items. Although he was arrested and later cautioned by the Police for this incident, Wood did not initially disclose any of this to his employer.

Wood was subject to his employer’s code of conduct, which required all members of staff to act ‘with honesty and integrity’. As an extension of this, staff were regularly vetted by their employer to ascertain if they were able to safely conduct the sensitive aspects of their role. Three months after the incident, as a result of their vetting process, the employee discovered Wood’s Police caution which despite initially denying he later admitted to.

In the following discussions with his employer Wood attributed the act to his PTSD and associative amnesia, arguing that the theft had taken place due to him being in a dissociative state. Despite this, following a prolonged disciplinary process, the employee was dismissed for gross misconduct. In response Wood brought a claim for disability discrimination to an employment tribunal (ET), arguing that he had suffered unfavourable treatment as the theft was an act arising in consequence of his disability, which is protected under section 15 of the Equality Act 2010.

After reviewing the facts, the ET accepted that Wood was recognised as disabled under the Equality Act 2010 yet still proceeded to dismiss his claim. In coming to their decision the ET explained that whilst the Equality Act does provide protection from unfavorable treatment arising from a disability, ‘tendency to steal’ is excluded from this protection under the provisions of the Equality Act (Disability) Regulations 2010.

The employee proceeded to appeal this decision to the Employment Appeal Tribunal (EAT) on the grounds that he had not displayed a ‘tendency to steal’ but rather a ‘tendency to memory loss and forgetfulness’. As a ‘tendency to steal’ usually stems from an intention to commit a dishonest act the EAT concluded that the employee’s actions had amounted to dishonesty, especially as he had failed to inform his employer of the act and denied involvement when the theft originally came to light. As a result, the EAT held that the ET had been correct to find the employee dishonest and that he was therefore not entitled to claim disability discrimination.

This ruling highlights an important, but often overlooked, legal provision that there are certain conditions which are expressly stated not to be impairments under the Equality Act 2010. These include ‘tendency to steal’, ‘tendency to set fires’, exhibitionism and voyeurism and it may be possible to dismiss a disabled employee for possessing these tendencies. However, when dismissing in these circumstances employers must still be able to show that the dismissal is not due to any underlying impairment to avoid discrimination claims.

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