Lofty v Hamis (t/a First Café) (Employment Appeal Tribunal) 

The EAT has found that an employee with a pre-cancerous form of melanoma was disabled for the purposes of the Equality Act 2010 and cautioned employers against drawing artificial distinctions between different types of cancer, or those at different stages, when considering the issue of deemed disability.

The Claimant was dismissed following a series of absences, a number of which were directly related to her diagnosis of and treatment for a pre-cancerous lesion, which is a type of the earliest stage of a skin cancer called melanoma. She claimed that her dismissal was an unlawful act of disability discrimination, relying on provisions under the Equality Act 2010 (“EqA”) which automatically deem those with cancer to be disabled. However, the employer contended that her condition was not cancer in the true sense because it was at an early stage, could not spread to other body parts and was therefore not invasive. The Employment Tribunal agreed with this assessment, finding that as the Claimant did not have an actual cancer diagnosis, he could not be deemed disabled. The Claimant appealed. 

The EAT allowed the appeal and criticised the ET’s reasoning on this point. The medical evidence before it had shown that the nature of the Claimant’s in situ melanoma meant there were cancerous cells in the top layer of her skin, and that this should simply be considered a particular stage in a cancer’s development. The provisions which deem cancer to be a disability from the point of diagnosis under the EqA were intended to avoid uncertainty and so make no distinction between categories of cancers, or those at different stages. A broad, factual approach which is specific to each condition is therefore necessary. The EAT noted that whilst pre-cancerous conditions may not always necessarily equate to cancer, the evidence before it here required the ET’s original decision to be set aside.

Employers should therefore be extremely cautious before concluding that an individual with a pre-cancerous condition should not benefit from deemed EqA protection against disability discrimination. Strong medical evidence would likely be needed to show that such a condition does not constitute cancer. Sensible employers would be well-advised to permit reasonable time off for those suffering from cancer – regardless of its stage or type – to attend consultations and procedures, in accordance with their duty to make reasonable adjustments.