In the case of Lofty v Hamis t/a First Café, the Employment Appeal Tribunal (EAT) considered whether an in situ cancer (where cancerous cells were present in the skin but had not spread to other parts of the body) was cancer for the purposes of the Equality Act 2010.
Cancer, disability and the Equality Act 2010
In order to establish that a person meets the definition of disability under the Equality Act 2010, that individual must show that they have a mental or physical impairment that has a
substantial and long-term adverse effect on their ability to carry out day to day activities.
Some conditions, including cancer and HIV, are deemed disabilities at the point of diagnosis. Practically, this means that an individual diagnosed with cancer will be automatically be classed as having a disability without the need to satisfy the usual tests.
L, a café assistant, became aware of a blemish on her cheek. Following a biopsy, her consultant dermatologist told her that she had lentigo maligna, describing this as a “pre-cancerous lesion which could result in [skin cancer]”. Having been signed off work from August 2015, L underwent two operations to remove the malignant cells.
These were successful and by mid-September, L was clear of any possible cancer. However, she continued to be signed off work for related health issues, including subsequent skin grafts and extreme anxiety. In December, her employment was terminated by H because she had failed to attend meetings to discuss her continued absence. L brought Employment Tribunal claims for unfair dismissal and disability discrimination.
In situ and invasive cancers
The EAT found that, although the information adduced by the respondent distinguished between in situ and invasive cancers, paragraph 6 of Schedule 1 of the Equality Act drew no such distinction. It was apparent that parliament had chosen to not exclude minor cancers from the protection afforded by this provision, which was intended to avoid unnecessary complexity and uncertainty. The EAT therefore found that there was no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they have not reached a particular stage.
The EAT therefore adopted a straightforward approach to interpreting the relevant part of the Equality Act 2010. The claimant was only required to show that she had cancer to meet the definition of disability.
It is worth noting that, like all cases focusing on the definition of disability, this case is fact specific. The EAT conceded that a diagnosis of ‘pre-cancerous’ cells might mean something
different depending upon where the cells are to be found. However, in terms of skin cancer, the evidence meant that L had cancer for the purposes of the Equality Act.
For more information on any of the issues raised in this article or on employment law matters in general, please contact Sarah FitzGerald in the Leeds Employment team by emailing [email protected] or calling 0113 212 6024.