The EAT upheld the tribunal’s right to decide whether there was dishonesty in deciding if a claimant with dissociative amnesia had a ‘tendency to steal’.
A ‘tendency to steal’ is excluded from being a disability under Equality Act 2010. In Wood v Durham County Council (bailii.org) it seems to have been accepted that this would not include a tendency to take things honestly, as might occur due to forgetfulness for example, since theft requires dishonesty.
However on the facts of this case, which involved PTSD and dissociative amnesia, the tribunal was held entitled to find there was a tendency to steal, and the disability discrimination claims failed accordingly.
The claimant was a former police officer and worked for the council as an Anti-Social Behaviour Officer. He was dismissed after being found taking items from Boots without paying.
The EAT said it was a question of fact for the tribunal to decide whether the claimant’s conduct was to be regarded as dishonest, applying the objective standards of ordinary, reasonable and honest people armed with all the information (including the medical evidence). The tribunal had decided that here his behaviour should be regarded as dishonest.