Wood v Durham County Council

A mental impairment which manifests as a tendency to steal is an excluded condition under Regulation 4(1)(b) of the Equality Act 2010 (Disability) Regulations 2010 where that tendency is the effective cause of the treatment complained of. The question whether conduct was dishonest is one for the fact-finder, applying objective standards after identifying the individual’s actual state of knowledge or belief.

An Employment Tribunal may find dishonesty on the civil standard notwithstanding that a penalty notice is not a criminal conviction. A preliminary hearing is ordinarily conducted by an Employment Judge alone unless a party requests a full tribunal under Rule 55. Tribunals should nevertheless use preliminary hearings cautiously where fact and law overlap with an unresolved unfair-dismissal claim.

The claimant, a former police officer employed as an Anti-Social Behaviour Officer, was dismissed after leaving a shop without paying for goods, accepting a Penalty Notice for Disorder, losing police vetting accreditation, and failing to report the matter to his employer. He contended that post-traumatic stress disorder, dissociative amnesia and memory loss had caused inadvertent forgetfulness rather than theft.

At a preliminary hearing, the Employment Tribunal found that his impairment manifested itself in a tendency to steal. It held that the tendency was an excluded condition and dismissed his disability-discrimination claims, while leaving his unfair-dismissal claim to be determined. The claimant appealed, alleging error in the finding of a tendency to steal, error in the Employment Judge sitting alone, and perversity.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the claimant’s post-traumatic stress disorder manifested itself in a tendency to steal. Although the claimant described his conduct as forgetfulness during a dissociative state, his pleaded case had consistently asserted a recurring tendency to leave shops without paying. The Tribunal was therefore not required to treat the shop incident as an isolated event.

2. The Employment Tribunal correctly applied the objective test of dishonesty in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. Dishonesty was a factual question for the Employment Judge. The findings concerning the signed admission, removal of the identification lanyard, false account of occupation, failure to report the matter and subsequent conduct made the conclusion open to the Tribunal. A Penalty Notice for Disorder was not a conviction, but did not preclude a civil tribunal from finding dishonesty on the civil standard.

3. The effective cause of the dismissal and of the alleged discriminatory treatment was the excluded tendency: the shop theft led to the penalty notice, withdrawal of accreditation, disciplinary process and dismissal. Applying Edmund Nuttall Ltd v Butterfield [2006] ICR 77, the exclusion had to be assessed in the context of the alleged discrimination, rather than in isolation. The disability-discrimination claims were consequently outside the statutory protection.

4. There was no error in holding the preliminary hearing before an Employment Judge alone. Neither party requested a full tribunal under Rule 55. The perversity challenges failed. One finding, that the claimant had not informed the police, was inaccurate, but immaterial to the Tribunal’s overall conclusion.

Obiter: Tribunals should consider carefully whether a preliminary hearing is appropriate where a Regulation 4 issue overlaps with a free-standing wrongful- or unfair-dismissal claim. A supposed short-cut may create delay and cost where no genuinely discrete knockout point exists.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s dismissal of the disability-discrimination claims was upheld.
• Employment Tribunal, North Shields: At a preliminary hearing on 1 November 2017, an Employment Judge sitting alone held that the claimant’s tendency to steal was excluded by Regulation 4(1)(b) of the Equality Act 2010 (Disability) Regulations 2010. The disability-discrimination complaint was dismissed; the unfair-dismissal claim remained for determination.