Ms Lofty had a pre-cancerous lesion which could result in skin cancer. She was treated but remained absent from work for related health issues, including skin grafts and extreme anxiety. She failed to attend meetings to discuss her absence and was dismissed.
Ms Lofty brought claims for unfair dismissal and disability discrimination. The Tribunal dismissed her disability discrimination claim on the grounds that Ms Lofty did not have cancer within the meaning of the Equality Act 2010 and could not benefit from the provisions that deem cancer to be a disability. The Tribunal focussed in particular on the fact that Ms Lofty’s condition was pre-cancerous, rather than invasive.
Employment Appeal Tribunal decision
Ms Lofty appealed. The Employment Appeal Tribunal found that the evidence was that Mrs Lofty had an in situ melanoma which meant that there were cancer cells in the top layer of her skin. The medical evidence was that "pre-cancer" may be regarded as medical shorthand for a particular stage in the development of cancer but it does not mean there is no cancer for the purposes of the Equality Act 2010. A diagnosis of pre-cancerous cells might mean something different depending where the cells are found, but, in terms of skin cancer, the evidence showed that it was a type of cancer.
Almost all cancers are regarded as an automatic disability under the Equality Act 2010. This case appears to extend that protection to pre-cancerous conditions, though each case should be considered on its own facts and much will depend on the location of the pre-cancerous cells. Employers should be cautious about concluding that a pre-cancerous condition does not mean cancer and should investigate and obtain medical evidence where there is any doubt.