The Employment Appeal Tribunal (“EAT”) has confirmed, in Lofty v Hamis (trading as First Café), that a “pre-cancerous” skin lesion is a deemed disability for the purposes of paragraph 6 of Schedule 1 to the Equality Act 2010 (“Equality Act”).
The Claimant, Mrs Lofty, worked as a café assistant for the Respondent. In or around the summer of 2014, the Claimant became aware of a blemish on her cheek. Following a biopsy in March 2015, the Claimant was advised that her biopsy result was consistent with lentigo maligna “a precancerous lesion which could result in lesion malignant melanoma (skin cancer)”.
Between April 2015 and September 2015, the Claimant had a number of operations to excise the pre-cancerous cells, subsequently followed by skin grafts. The Claimant was signed off as unfit for work during this period. By mid-September 2015, the Claimant had been informed that her latest biopsy was clear. Thereafter the Claimant continued to be signed off from work until 17 December 2015 due to a number of related issues, including subsequent skin grafts and extreme anxiety.
In the intervening period, the Respondent undertook a review of the Claimant’s attendance. The Respondent attempted to arrange various meetings with the Claimant to discuss her absence but encountered difficulties meeting with her. On 7 December 2015, the Respondent terminated the Claimant’s employment due to her conduct, specifically the failure to attend meetings to discuss her absence.
At first instance, the Employment Tribunal (“ET”) found that the Claimant had been dismissed for a potentially fair reason but that her dismissal had been procedurally unfair. One of the other issues which arose was whether the Claimant’s condition was cancer for the purposes of paragraph 6 of Schedule 1 of the Equality Act. If it was, this would automatically mean she was disabled as cancer is a deemed disability. With respect to the Claimant’s claim for disability discrimination, the ET concluded that the Claimant did not have a deemed disability under the Equality Act as the Claimant’s diagnosis was that of a “pre-cancerous” condition, not cancer.
The Claimant appealed to the EAT. The EAT, having considered the evidence before the ET, determined that the Claimant had cancer for the purposes of the Equality Act. It accepted that the label of “pre-cancerous condition” had added a level of complexity but noted that Parliament had not attempted to distinguish between different types of cancers. The EAT agreed that there appeared to be no justification to distinguish between different cancers or for an ET to disregard cancerous conditions because they have not reached a particular stage. The relevant point of determination was always the point of diagnosis. The EAT concluded that paragraph 6 of Schedule 1 to the Equality Act did not distinguish between invasive and other forms of cancer; it only required that the Claimant had cancer.
Accordingly, the EAT set aside the ET’s finding and substituted its own view that the Claimant had a deemed disability for the purposes of the Equality Act.
This case illustrates that all diagnosed cancers are deemed disabilities for the purposes of the Equality Act. There is no need for a Claimant to demonstrate the severity of the cancer – it is sufficient for them to show that they have cancer.
Employers need to be careful not to conclude that a “pre-cancerous” condition is not cancer. Any employee diagnosed with a pre-cancerous condition should be treated with caution and medical evidence sought to ascertain whether or not the individual has a deemed disability under the Equality Act before taking any decision to dismiss.