Articles - ‘Pre-cancerous’ condition was deemed disability under the EqA

Employment & Discrimination - Rosalie Snocken

In Lofty v Hamis t/a First Café, the EAT has set aside an employment tribunal’s finding that a claimant with lentigo maligna – described as a ‘pre-cancerous’ condition by her consultant – did not fall within para 6 of Schedule 1 to the Equality Act 2010, which deems cancer to be a disability. The evidence before the tribunal was that L had an ‘in situ’ melanoma, i.e. cancer cells in the top layer of her skin. While Cancer Research UK (CRUK) states that in situ cancers are not cancers ‘in the true sense’ because they cannot spread to other parts of the body, para 6 of Schedule 1 does not distinguish between invasive and other forms of cancer; it requires only that the claimant has cancer.

L, a café assistant, became aware of a blemish on her cheek. Following a biopsy, her consultant dermatologist told her that she had lentigo maligna, describing this as a ‘pre-cancerous lesion which could result in [skin cancer]’. Having been signed off work from August 2015, L underwent two operations to remove the malignant cells. These were successful and by mid-September L was clear of any possible cancer. However, she continued to be signed off work for related health issues, including subsequent skin grafts and extreme anxiety. In December, her employment was terminated by H because she had failed to attend meetings to discuss her continued absence. L brought employment tribunal claims for unfair dismissal and disability discrimination. The tribunal upheld the former claim but dismissed the latter on the basis that L did not have a disability. It observed that cancer is deemed to be a disability by para 6 of Schedule 1 to the EqA. However, in the view of the tribunal, L’s condition did not amount to cancer for the purposes of that provision: the consultant had referred to it as a ‘pre-cancerous’ condition and following L’s operations it was confirmed that she had not developed skin cancer. L appealed against this finding.

The EAT observed that the evidence before the tribunal – from L’s GP, the British Association of Dermatologists and CRUK – was that L had an ‘in situ’ or ‘stage 0’ melanoma, i.e. cancer cells in the top layer of her skin. While CRUK’s website went on to say that in situ cancers are not cancers ‘in the true sense’ because they cannot spread to other parts of the body, para 6 of Schedule 1 does not distinguish between invasive and other forms of cancer; it requires only that the claimant has cancer. As made abundantly clear by para 6.59 of the IDS Employment Law Handbook, ‘Discrimination at Work’ (2017), together with the feature ‘Disability Discrimination – 1’ (IDS Brief 824), this was intended to avoid unnecessary complexity and uncertainty, the Government having concluded that it was not possible to distinguish effectively between those whose cancers are likely to go on to require substantial treatment and those whose cancers are not. Equally, however, para 6 of Schedule 1 does require that a complainant have one of the specified conditions; it is not sufficient that he or she might develop a relevant condition in the future. The EAT conceded that a diagnosis of ‘pre-cancerous’ cells might mean something different depending upon where the cells are to be found. However, in terms of skin cancer, the evidence meant that L had an in situ cancer. The EAT therefore substituted a finding that L had a deemed disability under the EqA.

Rosalie Snocken, led by Andrew Allen of Outer Temple Chambers, successfully acted on behalf of Ms Lofty.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2018/0177_17_1801.html

© 2018 THOMSON REUTERS (this news alert may not be reproduced without prior permission of IDS).

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