Disability discrimination: Excluded condition and legitimate impairment may both be present

In Edmund Nuttall Ltd v Butterfield [2005] IRLR 751, the EAT holds:

• The tribunal erred in finding that the employee, who committed criminal offences of indecent exposure, had been discriminated against on grounds of disability. "Exhibitionism" is an excluded condition under the Disability Discrimination (Meaning of Disability) Regulations 1996, notwithstanding the employee's mental impairment in the form of depression.
• The approach in Murray v Newham CAB [2003] IRLR 340, drawing a distinction between cases of "free-standing" excluded conditions and those that arise from a legitimate physical or mental impairment, was not helpful. A claimant may have both a legitimate impairment and an excluded condition. What must be ascertained is the cause of the alleged less favourable treatment. The claim will fail if the reason for the treatment is the excluded condition.
• In this case, the reason for the employee's dismissal was the excluded condition (exhibitionism), not the legitimate impairment (depression) that caused it, and the tribunal's finding that he had been discriminated against because of his disability was set aside.