The claimant worked as an Anti-Social Behaviour Officer at the respondent Council. He went to a chemist and left without paying for items he had placed in his bag. As a result of this incident he was ultimately dismissed from his job. He contended that he had post-traumatic stress disorder and associated amnesia and memory loss. In a disability discrimination claim, he argued that this caused forgetfulness and was the reason he forgot to pay for the items.

The respondent accepted that the claimant suffered from PTSD and that this was recognised as a disability under the Equality Act. However, it argued that the incident in the chemist arose out of the claimant’s inclination or tendency to steal, which is an excluded condition under the Equality Act and does not amount to a disability. 

The EAT held that the ET was entitled to hold that the claimant had a tendency to steal – rather than a tendency to memory loss and forgetfulness – which is not protected under the Act. It was understandable based on the evidence heard why the claimant was held to be dishonest. The appeal was rejected.

Although the Equality Act does not apply in Northern Ireland, the judgment is still relevant. The EAT decision suggests that in other circumstances there may still be discrimination so long as an impairment amounts to a protected disability. So, if an employee argues that they have a tendency to steal, it must still be examined whether or not this was caused by what might amount to a disability.

The question of what amounts to a qualifying disability is, of course, an issue in NI as much as it is in GB and employers should not jump to conclusions. The employer here was justified in deciding that the claimant did not suffer a protected impairment, but other situations may not be so straightforward and medical and other expert reports may be needed.
https://assets.publishing.service.gov.uk/media/5bf6ab30ed915d1813d80eb0/Mr_A_Wood_v_Durham_County_Council_UKEAT_0099_18_OO.pdf