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26 October 2018 | Comment |

Disability discrimination: definition of cancer

Cancer is listed as a disability under the Equality Act 2010, providing sufferers from automatic protection from discrimination. Employers must also make reasonable adjustments to a cancer sufferer’s job to remove any disadvantage they suffer as a result of their cancer.

The Employment Appeal Tribunal (EAT) has now held that pre-cancerous lesions will also amount to a disability (Lofty v Hamis (t/a First Café) UKEAT/0177/17).

Ms Lofty suffered from a pre-cancerous lesion on her cheek which could result in a malignant melanoma. Cancerous cells had been found in the top layer of Ms Lofty’s skin and the lesion was a type of the earliest stage of skin cancer. She was absent from work for surgery and related health issues. Her employer Mr Hamis eventually dismissed her. Ms Lofty raised an employment tribunal claim for unfair dismissal and disability discrimination.

The employment tribunal ruled that as the diagnosis was ‘pre-cancerous’ she did not suffer from cancer and was therefore not disabled under the legislation.

Ms Lofty’s appeal was successful. The Equality Act only requires an employee to show they have cancer for the legal protections to apply. The medical evidence showed that there were cancerous cells in the top layer of skin and this was enough for her to be considered disabled under the law and for the protections to apply to her.

The EAT did observe that ‘pre-cancer’ might mean something different depending on where the cells were found but in relation to this case of skin cancer, it was content that the evidence showed it was a type of cancer.

This case is a reminder to employers to be careful before reaching a conclusion that an employee’s condition of pre-cancer does not mean cancer. Any such conclusion should only be reached after seeking expert medical advice.

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