Update on disability discrimination

Victoria Middleditch examines the implications of two recent decisions relating to disabled employees 

Dismissal of employee with tendency to steal

The EAT has confirmed that, although an employee's ‘tendency to steal’ was a manifestation of his disability, that was an excluded condition and the employee was not able to bring a claim for disability discrimination.

The Equality Act 2010 (Disability) Regulations 2010 list several conditions that are not disabilities – these include tendencies to set fires, steal or commit physical/sexual abuse.

Mr Wood was employed by Durham County Council. His role as an antisocial behaviour officer required him to have clearance at Non-Police Personnel Vetting Level 2.  

Mr Wood was apprehended outside Boots for shoplifting. He was issued with a penalty notice for disorder and a fine. He did not inform the council about the incident.  

Mr Wood's manager became aware of the incident and, when questioned, Mr Wood denied knowledge of the incident before admitting to recalling it but denying responsibility. Mr Wood was dismissed following a disciplinary process.  

Mr Wood brought claims for disability discrimination and unfair dismissal, arguing that he had post-traumatic stress disorder and associated amnesia and memory loss, which meant he forgot to pay for the items (rather than stealing them) and to inform his line manager of the incident. 

The council accepted Mr Wood had a disability. However, it argued he could not bring a claim because he had been dismissed for a ‘tendency to steal’, which is excluded from protection.

The tribunal found in favour of the council and decided that Mr Wood was dismissed due to his ‘tendency to steal’. Mr Wood appealed and the EAT upheld the tribunal's decision. 

This case highlights that, where the reason for the treatment complained of is an excluded condition, the individual will not be afforded protection in relation to disability discrimination. It is also a good reminder to employers that certain conditions are expressly excluded as disabilities.

Disabled employee not treated unfavourably in relation to pension

The Supreme Court has decided that a disabled employee was not treated unfavourably when his pension entitlement was calculated on his part-time salary rather than his full-time salary. 

Mr Williams suffered from Tourette's Syndrome, depression and other mental health conditions. He worked full-time for Swansea University for 10 years and then switched (as a reasonable adjustment) to working part-time for a further three years due to his disabilities. 

Mr Williams applied for ill-health retirement at the age of 38. Under the university's pension scheme rules, he was entitled to an immediate pension based on his final salary. Therefore, as he was by then working 50 per cent of full-time hours, his pension was half of what it would have been had he retired when he was working full-time. 

At first instance, Mr Williams was successful in a claim against the trustees for discrimination arising from a disability. The tribunal found that the failure to base his pension on a full-time salary was unfavourable treatment as the reason he was working part-time was his disability. 

The trustees successfully appealed to the EAT and were subsequently successful in the Court of Appeal and the Supreme Court. 

The Supreme Court found that there was nothing intrinsically unfavourable or disadvantageous about the award of the pension. If Mr Williams had been able to work full-time, he would not have been entitled to an immediate pension until he was 67. 

This case provides reassurance to employers who offer additional benefits to disabled employees (such as pension schemes and insurance contracts) as it confirms that changes to the benefits due to reasonable adjustments are unlikely to be regarded as unfavourable treatment.

Victoria Middleditch is an associate at Dentons