In the recent case of Lofty v Hamis, the Employment Appeal Tribunal (the “EAT”) found that a “pre-cancerous” condition – namely lentigo maligna – was deemed to be a disability under the Equality Act 2010.

What is a deemed disability?

Under the Equality Act 2010, a person has a disability if they have a physical or mental impairment, and that impairment has a substantial and long term adverse effect of their ability to carry out normal day-to-day activities.

Cancer is a condition automatically listed as a disability in the Equality Act. The question in this case was whether a “pre-cancerous” condition could fall under this.

Lofty v Hamis – the facts

The claimant, Mrs. Lofty, was diagnosed with lentigo maligna, described by her consultant dermatologist as “a pre-cancerous lesion which could result in lesion malignant melanoma (skin cancer)”. Mrs. Lofty successfully underwent procedures to remove the cancer cells before they had the opportunity to become invasive and spread to other parts of the body. She was signed off from work for around 4 months during which time her employer had difficulties in arranging meetings with her to discuss her return. This led to her employer terminating her employment.

Mrs. Lofty commenced proceedings for unfair dismissal, complaining that her dismissal was unlawful discrimination on the grounds that she had cancer. Her employer, Mr. Hamis contended this on the basis that it was not clear as to whether Mrs. Lofty’s condition would fall within the scope of the Equality Act.

Mrs. Lofty’s GP reported that she “had cancer” but the matter was made more complex by other evidence referring to a “pre-cancerous condition” and “cancer in situ” which was not “cancer in the true sense”.

What was the outcome in this EAT case?

Mrs. Lofty’s pre-cancerous condition was found to be a disability under the Equality Act.

The EAT held that the Equality Act does not distinguish between “pre-cancerous” conditions and other cancers, and that there was “no justification for the introductions of distinctions between different cancers or for an [employment tribunal] to disregard cancerous conditions because they have not reached a particular stage”.

Employers should always be wary of taking decisions in relation to an employee’s position where those employees have a disability or potential disability and legal advice is always recommended.