13 February 2018

In terms of the Equality Act 2010, cancer is a deemed disability which means there is no requirement to prove the relevant effect of the impairment (unlike other physical or mental impairments). But what does “cancer” mean – does it include ‘in situ’ cancer?

In Lofty v Hamis t/a First Café, the Employment Tribunal had to decide whether a ‘pre-cancerous’ condition resulted in the Claimant having a deemed disability.

The Claimant became aware of a blemish on her cheek. Her consultant dermatologist told her that she had lentigo maligna, which was described as a ‘pre-cancerous lesion which could result in [skin cancer]’. The Claimant had an ‘in situ’ melanoma, which meant that cancer cells existed in the top layer of her skin. ‘In situ’ cancers cannot spread to other parts of the body. Having been signed off work from August 2015, she underwent two operations to remove the malignant cells. These were successful. However, the Claimant continued to be off work for related health issues, including subsequent skin grafts and extreme anxiety. Her employer dismissed the Claimant because she had failed to attend meetings to discuss her continued absence.

The Claimant brought Employment Tribunal claims for unfair dismissal and disability discrimination. While the Employment Tribunal held that her dismissal was unfair the Tribunal concluded that she did not have a disability. The Tribunal reasoned that the Claimant’s condition did not amount to cancer for the purposes of the Equality Act.

Upon appeal the Employment Appeal Tribunal noted that the Equality Act does not distinguish between invasive and other forms of cancer; it requires only that the Claimant has “cancer”. The Employment Appeal Tribunal reviewed the position and decided that while a diagnosis of ‘pre-cancerous’ cells might mean something different depending upon where the cells are to be found, in terms of skin cancer, the evidence meant that the Claimant had an ‘in situ’ cancer and therefore a deemed disability.

This is a timely reminder of the provisions within the Equality Act that deem certain conditions to be a disability and of the need for employers to seek expert employment law advice in this tricky area of the law.

The full judgment can be viewed here: Lofty v Hamis t/a First Café

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.