The employee worked for Durham County Council as an anti-social behaviour officer. He had nine years' service and a clean disciplinary record. He had previously worked as a police officer for 17 years. He was subject to a code of conduct that applied inside and outside work, and required vetting to Non Police Personnel Vetting (NPPV) Level 2. The employee suffered from severe depression, PTSD and associated amnesia, which the employer accepted amounted to a disability.
During his employment, he went into a branch of Boots in Durham and left without paying for four items, which he had put into his own carrier bag. He was stopped outside the store by security staff, who called the police. He had removed his Council ID and when searched by the police he told them that he worked in security when asked about his occupation, which was of course untrue. He was issued with a Penalty Notice for Disorder (PND) and a £90 fine. He did not report the matter to the Council, as he was obliged to do under the Council’s code of practice.
Shortly afterwards, the employee’s NPPV clearance was refused due to the PND, which meant he was unable to work as an anti-social behaviour officer. When questioned by his line manager if anything had happened outside of work that he should be aware of, the employee lied and said not. The employee said he could remember the shop lifting incident but this was not due to dishonesty but attributable to his occasional memory loss, which meant that he sometimes forgot to pay for items before leaving a shop. Following a disciplinary process, the employee was dismissed for criminal conduct outside the workplace, withdrawal of NPPV clearance and the risk of reputational damage to the Council. His appeal was dismissed.
The nub of the dispute between the parties was whether the shoplifting from Boots demonstrated that the Claimant had a tendency to steal, which was an excluded condition for disability discrimination purposes.
The EAT agreed that the tribunal was correct to find that the Claimant’s tendency to steal, which was a result of his PTSD and dissociative amnesia, was an excluded condition for disability discrimination purposes. In other words, as the alleged discrimination was a result of an excluded condition, the exclusion applied and the Claimant lost the protection against disability discrimination. The EAT agreed that, based on the facts, the tribunal was correct in finding that the Claimant was dishonest and not simply forgetful in taking the goods without payment and that his dismissal was fair.
This case demonstrates that an employer may take disciplinary action, up to and including dismissal, where the employee has a condition that is an excluded condition for the purposes of disability discrimination legislation. This includes where the employee has a disability that may cause the excluded condition, provided that dismissal or disciplinary action is not taken on the basis of the non-excluded disability.