Criminal Exception to Disability Protection Analysed in Guideline Case

Mental or physical conditions that give rise to a tendency to commit various criminal acts are excluded from the protection that normally applies to disabilities under the Equality Act 2010.

An instructive case on point concerned a council worker who walked out of a shop without paying for goods when he was suffering from post-traumatic stress disorder (PTSD).

Shopping streetThe man was apprehended outside the shop having failed to pay for various items. He said that he had not been dishonest in that, as a consequence of his PTSD, he suffered from forgetfulness and memory loss. He had simply wandered out of the shop without remembering to pay. Following an internal disciplinary process, however, he was dismissed for gross misconduct.

It was common ground that his PTSD would normally be regarded as a disability. In rejecting his disability discrimination claim, however, an Employment Tribunal (ET) found that his conduct revealed a tendency to steal. His condition was thus excluded from being a protected disability by Regulation 4(1)(b) of the Equality Act 2010 (Disability) Regulations 2010.

In challenging that decision before the Employment Appeal Tribunal (EAT), the man, who had previously served 17 years as a police officer and had no criminal record, insisted that he was not a shoplifter and that the isolated incident could not form a reasonable basis for a finding that he had a tendency to steal.

Dismissing his appeal, however, the EAT noted that he had been stopped by security staff outside the shop and, after police were called, he had accepted a penalty notice. He had paid a £90 fine as an alternative to prosecution and had signed a statement in which he made an unequivocal admission of theft. The ET was entitled to find on the evidence that he had been dishonest and that the employer had established that the exclusion applied.

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