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EAT finds ‘pre-cancerous’ conditions are a disability under the Equality Act

16 Mar 2018 By Miriam Kenner

Employers should take medical and legal advice in such cases, expert says

The Employment Appeal Tribunal (EAT) has ruled that ‘cancer’ for the purposes of the Equality Act 2010 includes pre-cancerous lesions, as it upheld the unfair dismissal appeal of a women who suffered from a lesion that could have become malignant.

In the case of Lofty v Hamis, the EAT considered the definition of a ‘disabled’ person under the Equality Act.

It upheld cafe worker Christine Lofty’s unfair dismissal appeal against a tribunal decision that she did not have cancer, after she was was fired for taking time off from work while suffering from a pre-cancerous condition.

At the EAT on 18 January, Mrs Justice Eady handed down her judgment on the tribunal’s decision on Lofty’s claim against her employer, Mr Sadek Hamis, trading as First Café.

Lofty had been diagnosed as suffering from lentigo maligna, described as a pre-cancerous lesion that could result in lesion malignant melanoma (skin cancer). 

Lofty worked as a café assistant, having initially started her employment for the Eastern Counties Norwich Bus Drivers’ Canteen Management Committee in September 2001. 

In 2015, she transferred to Hamis’ employment at the café. During the summer of 2014, she become aware of a blemish on her left cheek and, following a referral to Norfolk and Norwich Hospital on 3 March 2015, had a first biopsy. 

On 31 March 2015, she was advised by her consultant dermatologist that the biopsy result was consistent with lentigo maligna.

Her doctor advised that, following a second biopsy further down the cheek, there were also “some atypical changes but did not amount to lentigo maligna”, although these also needed to be excised surgically.

At a further appointment on 18 April 2015 – which Lofty said was “an operation to remove the cancerous cells from my face” – she was advised that she would need more surgery and a skin graft. That surgery took place in August and September 2015. 

Lofty was signed off work on 17 August 2015 for four weeks. By mid-September, she had been told that her latest biopsy was clear of any possible cancer. 

She told the EAT: “Had my condition been left untreated, without surgery or medical intervention, it is highly likely that it would have invaded the healthy cells outside the epidermis and more aggressive cancer treatments such as radiotherapy or chemotherapy would have been required.

She continued to be signed off for this and related health issues, including subsequent skin grafts, and for “suffering extreme anxiety” until 17 December 2015. 

During this period, the respondent tried to review her attendance and arranged various meetings with her. This led him to terminate her employment, by letter dated 7 December 2015, because of her alleged conduct in failing to attend meetings to discuss her continued absence from work, according to the judgment. 

She brought a claim at the Bury St Edmunds tribunal for unfair dismissal. It found that she had been dismissed for a potentially fair reason but, as her dismissal had been procedurally unfair, her complaint was upheld. 

She also claimed that her dismissal was unlawful disability discrimination under section 15 of the Equality Act, as she had a deemed disability – namely cancer – which protected her. 

The respondent disagreed and, in late 2016, the tribunal found that she was not disabled under the Act. 

Under schedule 1, paragraph 6 of the Equality Act, “cancer, HIV infection and multiple sclerosis are each a disability”. 

For this reason, claimants bringing an employment tribunal claim are not required to prove they have an impairment with a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, the normal requirement in the Act.

In evidence before the EAT, Lofty’s GP provided clarification of her condition, explaining that cancerous cells had been found in the top layer of Lofty’s skin and that lentigo maligna was a cancer in situ, a type of the earliest stage of a skin cancer called melanoma. 

At the time of her dismissal, Lofty had undergone successful surgery to remove cancer cells from her face before they had the chance to spread to the rest of her body. 

According to the EAT, the respondent gave evidence from the Cancer Research UK website, which also referred to this condition being a “stage 0” melanoma or an in-situ cancer, and that such cancers were not cancer “in the true sense”, because they cannot spread to other parts of the body and they were thus not “invasive”.

The tribunal had referred to the diagnosis as ‘pre-cancerous’ and, on that basis, concluded she had not suffered cancer. It said that the provision in schedule 6, paragraph 1 of the Equality Act did not apply and therefore the claimant was not a disabled person. 

Lofty appealed and claimed that the tribunal misinterpreted ‘cancer’ for the purposes of the Act or misinterpreted ‘diagnosis’ for the purposes of the guidance and the Equality and Human Rights Commission Code of Practice.

The EAT found that the tribunal’s reasoning failed to show that it had engaged with evidence from Lofty’s GP, the clarification given on what was meant by pre-cancerous and her diagnosis.

While the information relied on by First Café distinguished between in-situ cancer and invasive cancers, the Equality Act did not distinguish this. Parliament “had chosen not to exclude minor cancers from the protection afforded by the deeming provision, which was intended to avoid unnecessary complexity and uncertainty”.

Eady said that under the Equality Act, Lofty was required only to prove that she had cancer. Evidence that there were cancerous cells in the top layer of her skin – in situ – was enough to discharge the burden of proof in this case. 

The EAT also found that the relevant point of determination of a disability, in this case cancer, is at diagnosis, not after treatment.

According to Andrew Egan, employment senior associate at Coffin Mew, “the evidence was that ‘pre-cancer’ may be regarded as a medical term of a particular stage in the development of cancer. 

“It did not mean that [Lofty] did not have cancer within the meaning of the Equality Act. The legislation does not differentiate between cancer types and the evidence showed she had a type of cancer.” 

Egan advised that “to avoid or minimise the risk of possible disability discrimination claims, employers should take expert medical and legal advice” in relation to conditions or illnesses such as pre-cancer and the best way in which to deal with these matters at work. 

This includes identifying and making reasonable adjustments for disabilities, as well as being careful not to discriminate in any way against employees with disabilities.

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