Reward insight
Wood v Durham City Council In this case EAT was asked to determine if the decision to dismiss an employee with post-traumatic stress disorder (PTSD) for theft was discriminatory. The employee, Mr Wood, worked as an anti-social behaviour officer for Durham Council. He suffered from PTSD and dissociative amnesia and on one occasion he was caught leaving a Boots store without paying for certain items. Although he was arrested and later cautioned by the police for this incident, Wood did not initially disclose any of this to his employer. Wood was subject to his employer’s code of conduct, which required all members of staff to act ‘with honesty and integrity’. As an extension of this, staff were regularly vetted by their employer to ascertain if they were able to safely conduct the sensitive aspects of their role. Three months after the incident, as a result of their vetting process, the employee discovered Wood’s police caution which despite initially denying he later admitted. In the following discussions with his employer Wood attributed the act to his PTSD and associative amnesia, arguing that the theft had taken place due to him being in a dissociative state. Despite this, following a prolonged disciplinary process, the employee was dismissed for gross misconduct. In response, Wood brought a claim for disability discrimination to an ET, arguing that he had suffered unfavourable treatment as the theft was an act arising in consequence of his disability, which is protected under section 15 of the Equality Act 2010 (‘the Act’). After reviewing the facts, the ET accepted that Wood was recognised as disabled under the Act yet still proceeded to dismiss his claim. In coming to their decision the ET explained that whilst the Act does provide protection from unfavorable treatment arising from a disability, ‘tendency to steal’ is excluded from this protection under the provisions of the Equality Act (Disability) Regulations 2010. The employee proceeded to appeal this decision to the EAT on the grounds that he had not displayed a ‘tendency to steal’ but rather a ‘tendency to memory loss and forgetfulness’. As a ‘tendency to steal’ usually stems from an intention
to commit a dishonest act the EAT concluded that the employee’s actions had amounted to dishonesty, especially as he had failed to inform his employer of the act and denied involvement when the theft originally came to light. As a result, the EAT held that the ET had been correct to find the employee dishonest and that he was therefore not entitled to claim disability discrimination. The ruling highlights an important, but often overlooked, legal provision that there are certain conditions which are expressly stated not to be impairments under the Act. These include tendency to steal, tendency to set fires, exhibitionism and voyeurism and it may be possible to dismiss a disabled employee for possessing these tendencies. However, when dismissing in these circumstances, employers must still be able to show that the dismissal is not due to any underlying impairment to avoid discrimination claims. ...prevents employers from dismissing staff for medical incapability whilst they are receiving PHI... Awan v ICTS UK Ltd In this case the EAT ruled on whether an employer’s decision to dismiss an employee – who was off sick and benefiting from the company’s disability benefit plan – for medical incapability was discriminatory. The employee, Mr Awan, had worked under a contract entitling him to a long- term disability benefit plan that expressly stated the benefits would cease if his employment was terminated. In October 2012, the employee commenced a period of sick leave due to depression, during which his employment was transferred to ICTS UK Ltd under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The employee remained on sickness absence, receiving payments under the permanent health insurance (PHI) scheme until November 2014. However,
as no adjustments were identified which would enable him to return to work, the employer proceeded to dismiss Aswan for medical incapability in November 2014. Awan brought a claim for unfair dismissal and discrimination arising from a disability, arguing that there was an implied contractual term which prevented him from being dismissed where this would have the effect of ending his PHI benefits. When assessing this case, the ET did confirm that the employee was disabled for the purposes of the Equality Act 2010. However, when assessing Awan’s claim for discrimination the ET failed to agree as they were unable to find the suggested implied term which prevented him from being dismissed whilst receiving the PHI benefits. As a result, the ET judged that the employer’s decision to dismiss was a proportionate means of achieving a legitimate aim. The employee proceeded to appeal this decision with the EAT which disagreed with the ET and confirmed that allowing an employer to dismiss an employee who is receiving PHI benefits is contrary to the aim of the scheme. The EAT maintained there was an implied contractual term within Awan’s contract which expressly prohibited the employer from dismissing him whilst he was receiving benefits under the scheme. Following this, the EAT remitted the case back to the ET to determine, now that the implied term is present, whether the dismissal was unfair and did any disability discrimination occur. The outcome of this case falls in line with previous rulings that have stated there will be an implied term which prevents employers from dismissing staff for medical incapability whilst they are receiving PHI benefits. As a result, employers must keep in mind the obligation placed upon them when looking to carry out a capability dismissal in this situation. This is because the aim of the scheme, which is to pay the employee for the period of their incapacity until a certain date or event, will not be met where the organisation can end the individual’s employment due to incapacity. Therefore, employers who provide PHI schemes to their staff as a benefit will need to ensure their contractual terms are drafted appropriately, allowing them to end employment when it becomes clear the employee will be unfit to return. n
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| Professional in Payroll, Pensions and Reward |
Issue 47 | February 2019
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