Although many HR professionals in the United Kingdom who deal with disability discrimination issues are all too familiar with the legal definition of a “disability” in the Equality Act 2010, many are unaware of the various exclusions to that definition. A recent decision by the Employment Appeal Tribunal has confirmed the previous case law as to what happens when an employee claims one of those excluded conditions stems from a legitimate disability.

What are the exclusions?

The UK's Equality Act 2010 provides protection against discrimination on the grounds of “disability” (amongst other protected characteristics, including sex and race), and defines “disability” as being when a person has (i) a physical or mental impairment, and (ii) the impairment has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities. The Equality Act (Disability) Regulations 2010 expressly state that the following conditions are not "impairments" for the purposes of the definition of a "disability" (and hence cannot amount to a disability):

• Addiction to/dependency on alcohol, nicotine or any other substance (other than medically prescribed drugs or other medical treatment).
• Tendency to set fires.
• Tendency to steal.
• Tendency to physically or sexually abuse other people.
• Exhibitionism.
• Voyeurism.
• Tattoos and body piercings.
• Seasonal allergic rhinitis (usually known as hayfever)—but hayfever can be taken into account where it aggravates the effect of any other condition.

What if the excluded condition arises from a disability?

A case concerning this question was recently explored by the Employment Appeal Tribunal (EAT) in Wood v Durham County Council UKEAT/0099/18 (3 September 2018).

Mr. Wood worked for the Durham County Council as a Behavioural Officer. He was caught shoplifting outside of work. This record of shoplifting prevented Mr. Wood from obtaining the Non Police Personnel Vetting (NPPV) clearance he needed in order to do his job. This led to a disciplinary process during which Mr. Wood claimed that he was not aware that he had shoplifted due to his underlying conditions of depression, post-traumatic stress disorder (PTSD) and associated amnesia. Despite this claim, the Council dismissed Mr. Wood.

As a result, Mr. Wood filed claims for unfair dismissal and disability discrimination on the grounds that his PTSD and associative amnesia had caused him to shoplift. The Council accepted that Mr. Wood had PTSD capable of amounting to a disability. However, it argued that Mr. Wood could not bring a disability discrimination claim because he had been dismissed for a “tendency to steal”, one of the excluded conditions in the Regulations that could not amount to a disability.

The Employment Tribunal and the EAT both found that the Council dismissed Mr. Wood because of the shoplifting incident and, therefore, a tendency to steal, not on account of any disability. Whether his tendency to steal was caused by his impairment of PTSD was irrelevant. As the excluded condition had been the cause of the claimant's dismissal (which was the act of discrimination complained of), the claimant was prevented from bringing his disability discrimination claims.

As an aside, there seems to be no guidance on what “tendency” means in the excluded conditions. Somewhat strangely in Mr. Wood’s case, the court concluded that he had a tendency to steal where Mr. Wood had only shoplifted once.

What if the disability arises from an excluded condition?

In contrast to the above position, a disability that is caused by one of the excluded conditions can amount to a disability. For example, depression, even if caused by the excluded condition of addiction to alcohol, can constitute an impairment. The involvement of the addiction to alcohol at an earlier stage does not negate the disability.

Key take-aways

This recent case demonstrates that excluded conditions under UK law can make or break an employee’s discrimination claim, so it is important to be aware of and understand them.

HR professionals should also make sure to document clearly the exact reasons why certain disciplinary actions are taken, particularly in relation to disability issues connected with one of the above conditions. When courts are looking in minute detail at what the reasons were behind certain decisions, it is evidentially far better to be able to point to something contemporary.