Cancer has always been a disability for the purposes of disability discrimination under employment law. There are particular conditions that are whitelisted as disabilities under the Equality Act, cancer being one of them.
The Employment Appeal Tribunal (‘EAT’) recently looked at whether a ‘pre-cancerous’ diagnosis is a ‘deemed disability’ under the EA.
Facts:
Mrs Lofty was a café assistant from 2001. In 2014 she noticed a blemish on her left cheek. The hospital told that her biopsy results were consistent with lentigo maligna, cancerous cells that could result in skin cancer. She signed off work on 17 August 2015 to go through surgery to deal with these cells. In mid-September, she was cleared of any possible cancer. She continued to be signed off work for related health issues and suffering extreme anxiety until 17 December 2015.
First Café reviewed her attendance and dismissed her for failing to attend meetings to discuss her continued absence from work.
Mrs Lofty lodged a tribunal claim for disability discrimination. She argued that her pre-cancer was deemed to be a disability under the Equality Act. The tribunal observed her diagnosis as ‘pre-cancerous’, and so thought Mrs Lofty hadn’t suffered cancer within the meaning of the Equality Act, concluding that she wasn’t disabled.
Mrs Lofty appealed to the EAT.
Decision
The EAT concluded that because Mrs Lofty had cancerous cells in the top layer of her skin, that this was a deemed disability for the purposes of the EA. The EAT commented that Parliament didn’t exclude minor cancers from this protection. The EAT also commented that a diagnosis of pre-cancerous cells may mean something different depending on where the cells are to be found, but that for skin cancer, it is a type of cancer.
Analysis
The EAT’s clarification that pre-cancerous conditions can be recognised as cancer has potentially expanded the number of people that are protected automatically by the Equality Act. In light of this, employers should be cautious about how they treat employees with pre-cancerous conditions because this case illustrates that such conditions can, depending on the medical evidence, be recognised as a deemed disability.
By Zahid Reza
Case report: Lofty v Hamis (t/a First Cafe) [2018]
Image used under CC courtesy of bndF1