In Lofty v Hamis, the EAT has substituted a finding of disability in a case where the employee had skin cancer described by medical professionals as “pre-cancerous”. 

Mrs Lofty was a café assistant working for Mr Hamis. She had a number of absences from work. Some of these were linked to treatment for her skin condition. She was later dismissed from work because of her absences and she brought claims for unfair dismissal and discrimination arising from disability. 

The tribunal upheld her unfair dismissal complaint on the basis that her dismissal was procedurally unfair. However, it dismissed her disability discrimination claim on the basis that – 7 – she did not at any time actually have cancer and so was not disabled for the purposes of the Equality Act. 

The EAT disagreed. It held that the tribunal had failed to engage with the evidence presented to it. This evidence showed that Mrs Lofty did have cancer cells in the skin on her face. In some of the medical reports, her condition was described as “pre-cancerous”, but this referred to the fact that the cancer had not yet invaded the deeper layers of the skin.

Employers should be aware that people who are diagnosed with cancer, HIV or multiple sclerosis are deemed disabled and are protected by the legislation from the point at which they are diagnosed, whether they are suffering from any symptoms or not.