The Employment Appeal Tribunal (EAT) has decided that a ‘pre-cancerous’ form of skin cancer is deemed to be a disability under the Equality Act 2010.

Lofty v Hamis (t/a First Café), EAT

Facts

Mrs Lofty, a café assistant, was dismissed following an extended period of sickness absence. She had undergone surgery for what was described as a ‘pre-cancerous lesion’ on her face, and was signed off for a further period due to related health issues including skin grafts and anxiety. Her employment was eventually terminated after she failed to attend meetings to discuss her continued absence.

Her claim for unfair dismissal was upheld by an employment tribunal, but her claim for disability discrimination was rejected on the grounds that she did not have a disability. Cancer is deemed to be a disability under the provisions of the Equality Act 2010, but in the tribunal’s view, Mrs Lofty’s condition did not amount to a deemed disability under the Act. She appealed to the EAT.

EAT decision

The EAT upheld Mrs Lofty’s appeal, finding that she had a disability within the meaning of the Equality Act 2010. The medical evidence was that she had an ‘in situ’ or ‘stage 0’ melanoma, meaning that cancer cells were present in the top layer of her skin. The statutory provisions for deemed disabilities, under Schedule 1 of the Equality Act 2010, only requires a diagnosis of cancer; it does not distinguish between invasive and other forms of cancer, in order to avoid unnecessary complexity or uncertainty. The EAT was, therefore, satisfied that having an ‘in situ’ cancer was sufficient to mean that Mrs Lofty was disabled under the Act.

Consequences

Employers should exercise caution in treating a ‘pre-cancerous’ condition as not meeting the definition of a disability under the Equality Act 2010. The EAT did comment that a diagnosis of ‘pre-cancerous cells’ being present elsewhere might mean something different, depending on their location. Medical evidence should be carefully considered in such cases..