Section 15 Equality Act 2010 states:

A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2 )Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

This is often a useful section to evoke in claims of disability discrimination as it is often easier to show that the employer has treated the employee unfavourably because of, for example, frequent absenteeism or erratic behaviour or maybe frequent trips to the toilet during the working day, than it is to show that the employer has directly discriminated against the employee because of his or her disability itself. Provided the employer is unable to show that the unfavourable treatment was a proportionate means of achieving a legitimate aim, the claim will succeed.

However, what if the something arising in consequence of the disability is, itself, an excluded condition? This was considered in the case of Wood v Durham County Council.

Mr Wood was suffering from PTSD and dissociative amnesia. One of the symptoms of these conditions was that he had a tendency to steal. He was dismissed by the council when he was caught stealing from Boots the Chemist. He argued that his dismissal was unfavourable treatment because of something arising from his disability. The Council relied on Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010 which excludes a tendency to steal as a protected disability.

The EAT held that this was the correct position to take. He was dismissed because he had a tendency to steal and did actually steal. Whilst this tendency to steal arose from his other disabilities, it was also a disability in its own right and was thereby excluded from protection.

Relevant legislation

Regulation 4(1)(b) Equality Act (Disability) Regulations 2010

4(1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—

(a)a tendency to set fires,

(b)a tendency to steal,

(c)a tendency to physical or sexual abuse of other persons,

(d)exhibitionism, and

(e)voyeurism.

(2) Subject to paragraph (3) below, for the purposes of the Act the condition known as seasonal allergic rhinitis shall be treated as not amounting to an impairment.

(3) Paragraph (2) above shall not prevent that condition from being taken into account for the purposes of the Act where it aggravates the effect of any other condition.