The EAT has held that a tribunal was wrong to decide that a form of skin cancer described as “pre-cancerous” was not a deemed disability.
Generally, employees bringing claims of disability discrimination need to show that they have a “disability” according to the legal definition – i.e. that they have a mental or physical impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities. However, some medical conditions, including cancer, HIV infection and multiple sclerosis are “deemed” disabilities, meaning that individuals suffering from these conditions are protected as disabled from the day of diagnosis.
Mrs Lofty worked as a café assistant. She was diagnosed with lentigo maligna, which was described as “a precancerous lesion which could result in lesion malignant melanoma (skin cancer)”. She went through several surgical procedures, and was signed off work for these and associated health conditions. Her employer tried to undertake a review of her attendance and to arrange meetings with her. Difficulties in doing so led her employer to terminate her employment for her conduct in failing to attend meetings to discuss her continued absence from work. She claimed that she had been unfairly dismissed (and her complaint was upheld).
Mrs Lofty also claimed that she had a deemed disability – cancer – and that her dismissal was an act of unlawful disability discrimination. Her employer disputed that she was disabled. The tribunal, particularly referring to the description of her condition as being “pre-cancerous” held that she did not have “cancer” according to the meaning of the legislation, so she did not have a deemed disability.
Mrs Lofty appealed to the EAT.
The EAT disagreed with the tribunal. It held that the employment tribunal did not look at all the evidence, which included a GP’s assessment that she “had cancer”, advice that lentigo maligna was one type of the earliest stage of skin cancer called melanoma, and was a cancer in situ, meaning that there were cancer cells which have not had the opportunity to spread or “invade”. The EAT said that the evidence showed she had cancer, and that this was sufficient. The legislation does not distinguish between invasive and other forms of cancer: it only requires that the individual has cancer for them to have a “deemed disability”. The EAT distinguished this from the situation where the individual might develop cancer in the future which would not constitute a deemed disability.
What does this mean for employers?
Employers should not assume that conditions described as “pre-cancerous” are not deemed disabilities. An employer would need strong medical evidence that an employee does not have cancer before treating an employee as if they are not protected from disability discrimination.