Pre-cancerous condition deemed a “disability” under the Equality Act 2010?

  • Joanne Baker-Gabb
  • Thursday, May 3rd, 2018

The Employment Appeal Tribunal, in Lofty v Hamis (t/a First Café)  recently held that a pre-cancerous condition was deemed a “disability” under the Equality Act 2010 (a transcript of the judgement can be accessed here http://www.bailii.org/uk/cases/UKEAT/2018/0177_17_1801.html).

The Claimant, a café assistant, had been diagnosed as suffering from lentigo maligna, describing this as a ‘pre-cancerous lesion which could result in a lesion malignant melanoma (skin cancer)’. The Claimant was signed off work from August 2015 and underwent two successful operations to remove the malignant cells.

Her employment was terminated because she had failed to attend meetings to discuss her continued absence. The Claimant brought Employment Tribunal claims for unfair dismissal and disability discrimination.

The Tribunal upheld the unfair dismissal claim due to procedural errors but dismissed the discrimination claim on the basis that the Claimant did not have a disability. It observed that cancer is deemed to be a disability by paragraph 6 of Schedule 1 to the Equality Act 2010. However, in the view of the Tribunal, the Claimant’s condition did not amount to cancer for the purposes of that provision. The Claimant appealed against this ruling.

The Employment Appeal Tribunal allowed the appeal and set aside the Employment Tribunal’s finding. The evidence before the Tribunal was that the Claimant had an ‘in situ’ melanoma, i.e. cancer cells in the top layer of skin. Paragraph 6 of Schedule 1 does not distinguish between invasive and other forms of cancer; it requires only that the claimant has cancer. The Employment Appeal Tribunal therefore substituted a finding that the Claimant had a deemed disability under the Equality Act 2010.

We would always strongly recommend that expert advice is sought from one of our specialist employment lawyers if you have any concerns with disability discrimination within the workplace.