Employee with “pre-cancerous lesion” deemed disabled


2 mins

Posted on 22 Mar 2018

An employee with a “pre-cancerous lesion” had skin cancer and was therefore deemed to be disabled.

Facts 

In Lofty v  Hamis (t/a First Café), Mrs Lofty was dismissed following absences from work, at least some of which related to treatment for her condition.  She claimed disability discrimination, arguing that that she was suffering from cancer and was therefore deemed to be disabled under the Equality Act 2010.  

There was a variety of medical evidence about her condition, lentigo maligna. It was described both as a “pre-cancerous” lesion which could result in skin cancer and a “cancer in situ” (a type of the earliest stage of a skin cancer).  

The employment tribunal concluded she did not have cancer within the meaning of the EqA 2010 and was not therefore disabled.  It paid particular attention to the parts of the medical evidence using the term “pre-cancerous” and to the evidence that the condition was not (yet) invasive.

Mrs Lofty appealed and the Employment Appeal Tribunal (EAT).

Decision

The EAT overturned the tribunal’s decision and ruled that Mrs Lofty was disabled and so could bring a disability discrimination claim.  

The tribunal had not paid sufficient attention to the parts of the evidence indicating that Mrs Lofty had an "in situ" melanoma, the early stages of skin cancer where cancer cells were present in the top layer of skin.  The EAT noted that Parliament had chosen not to differentiate between invasive and other forms of cancer.  

Implications

Employees suffering from cancer are deemed disabled from the point of diagnosis, without having to satisfy the usual test of disability under the Equality Act 2010.  Employers should look critically at medical evidence about disability and should not assume that a condition described as “pre-cancerous” is not in fact cancer.  As the claimant in this case argued, the term "pre-cancerous" can simply be medical shorthand for a particular stage in the development of cancer and does not necessarily mean that the person is not already suffering from cancer.  

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