Contributors
In Lofty v Hamis (trading as First Café) UKEAT/0177/17, the Employment Appeal Tribunal had to consider whether a claimant with a pre-cancerous skin lesion fell within paragraph 6 of Schedule 1 to the Equality Act 2010 (the Act), which deems cancer (and some other conditions) to be a disability.
Facts
Ms Lofty was a café assistant. In summer 2014 she became aware of a blemish on her cheek. She was referred to a specialist and underwent two biopsies, following which her consultant dermatologist told her that she had lentigo maligna, which was a pre-cancerous lesion that could result in lesion malignant melanoma (skin cancer). Ms Lofty was signed off work from August 2015 and underwent two operations to remove the malignant cells before they could spread. The operations were successful and by mid-September, Ms Lofty was clear of any possible cancer. However, she continued to be signed off work for subsequent skin grafts and extreme anxiety. In December, her employer terminated her employment because she had failed to attend meetings to discuss her absence. Ms Lofty brought employment tribunal (ET) claims for unfair dismissal and disability discrimination.
Employment tribunal decision
The ET upheld Ms Lofty's unfair dismissal claim: she had been dismissed for a potentially fair reason but her dismissal had been procedurally unfair. The ET dismissed her disability discrimination claim on the basis that she did not have a disability. The consultant had referred to her condition as "pre-cancerous" and, following surgery, it was confirmed that Ms Lofty had not developed skin cancer so she was not disabled within the Act. Ms Lofty appealed.
Employment Appeal Tribunal decision
The Employment Appeal Tribunal (EAT) held that Ms Lofty had an in situ cancer and therefore had a deemed disability under the Act.
The evidence before the ET was that Ms Lofty had an in situ or stage 0 melanoma, which was cancer cells in the top layer of her skin. This was one type of the earliest stage of a skin cancer called melanoma. While Cancer Research UK states on its website that in situ cancers are not cancers in the true sense because they cannot spread to other parts of the body, paragraph 6 does not distinguish between invasive and other forms of cancer; it just requires the claimant to have cancer. Parliament had deliberately chosen not to exclude minor cancers from the protection afforded by the Act. The EAT concluded that a diagnosis of pre-cancerous cells might mean something different depending on where the cells were to be found but in terms of skin cancer, the evidence showed that Ms Lofty had an in situ cancer. This constituted cancer therefore she had a deemed disability under the Act.
The EAT held that the relevant point of determination is the point of diagnosis and not a point after treatment. It said that it would be wrong for an ET to disregard cancerous conditions because they had not reached a particular stage, or to try and distinguish between different cancers.
Comment
Following this decision, employers need to be very careful before concluding that a condition labelled as "pre-cancerous" is not cancer. Faced with a similar situation, employers should seek medical evidence as to whether or not the employee is disabled before taking a decision to dismiss.
With Cancer Research UK forecasting that one in two people in the UK will be diagnosed with cancer at some point in their lives, most employers will have to deal with an employee with a cancer (or pre cancer) diagnosis at some point.
