Where an employee had been dismissed on the ground of medical incapacity while his contractual...
'Pre-cancerous' condition was a deemed disability
Lofty v Hamis t/a First Café
A diagnosis of cancer in situ (i.e. a pre-cancerous condition which is present but not yet at an invasive stage) is still a deemed ‘disability’ under the Equality Act.
Ms Lofty had a diagnosis of lentigo maligna, her consultant describing this as a ‘pre-cancerous lesion which could result in [skin cancer]’. She underwent successful operations but continued to be signed off work for related health issues, including subsequent skin grafts and extreme anxiety. She was dismissed because she failed to attend meetings to discuss her absence. She brought unfair dismissal and disability discrimination claims.
A tribunal upheld her unfair dismissal claim but dismissed the disability discrimination claim. While acknowledging that cancer is a deemed disability (by virtue of Sch. 1, para. 6 of the Equality Act), the tribunal held that Ms Lofty’s condition did not so qualify as her consultant had referred to it as a ‘pre-cancerous’ condition (i.e. not yet invasive) and, following her operations, it was confirmed that she had not developed skin cancer. Ms Lofty appealed.
Allowing her appeal, the EAT said that the evidence was that Ms Lofty had an in-situ melanoma. That meant there were cancer cells in the top layer of her skin. The evidence explained that ‘pre-cancer’ may be regarded as medical shorthand for a particular stage in the development of cancer; it does not mean there is no cancer for the purposes of the Equality Act. Parliament had chosen not to differentiate between different types of cancer. A diagnosis of ‘pre-cancerous’ cells might mean something different depending upon where the cells are to be found. But, in terms of skin cancer, the evidence meant that Ms Lofty had an in-situ cancer.
Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0177_17_1801.html
Almost all diagnosed cancers are regarded as an automatic disability. This case appears, on first reading, to extend that protection further but as the EAT pointed out, this type of case is likely to be very fact specific and very dependent on the location of the pre-cancerous cells. Any employee diagnosed with pre-cancerous skin cancer should be treated with caution by their employer and more questions asked as to whether this is just shorthand for the particular stage of the development of the cancer. There is of course a balance between worrying the employee too much and understanding an employer’s obligations to the employee - which will often be a difficult path to tread.