In situ disability

Paragraphs 6 and 7 of Schedule 1 of the Equality Act 2010 state that certain medical conditions, such as cancer, HIV and multiple sclerosis constitute “deemed disabilities”. The Employment Appeal Tribunal (EAT) held in Lofty v Hamis t/a First Café that, as the Equality Act does not distinguish between invasive and non-invasive cancerous conditions, it includes pre-cancerous conditions even if they do not develop into cancer.

Thompsons was instructed by Unite the Union to represent its member.

Basic facts

Ms Lofty, a café assistant, was diagnosed with a precancerous lesion (lentigo maligna) that could potentially result in skin cancer in March 2015. After an operation to remove the cancerous cells, she was told that she needed further surgery which she underwent in August and September. She remained on sick leave until December 2015, suffering from extreme anxiety.

In the meantime, her employer decided to undertake a review of her attendance. However, as she was unable to meet with him to discuss matters, he dismissed her by letter in December 2015 on the basis of her conduct in failing to meet with him.

She brought claims of unfair dismissal, wrongful dismissal/notice pay/ breach of contract, outstanding holiday pay and unlawful disability discrimination (discrimination arising in consequence of disability under section 15 of the Equality Act).

Tribunal decision

With regard to her unfair dismissal claim, the tribunal found that although she had been dismissed for a potentially fair reason, her dismissal was procedurally unfair. It therefore upheld that part of her claim.

However, it dismissed her claim for disability discrimination on the basis that, as she had been treated for a pre-cancerous condition and had not suffered from cancer at any time, she did not fall within the provisions of paragraph 6 or 7 of Schedule 1 of the Equality Act.

Relevant law

Paragraph 6 of Schedule 1 states that certain medical conditions, including cancer, constitute a disability. Paragraph 7 of Schedule 1 states that regulations may provide for people to have what is termed a “deemed disability”.

The Code of Practice of the Equality and Human Rights Commission states that cancer is a “deemed disability” under the Act from the point of diagnosis. It also states that anyone who has cancer is therefore automatically treated as disabled for the purposes of the Act.

EAT decision

The EAT allowed the appeal on the basis that the tribunal had failed to engage with evidence from her GP which clearly stated that Ms Lofty had cancer. It had also failed to engage with a leaflet enclosed with the GP’s report explaining that her condition was at a very early stage when it was discovered and the cells had not had the opportunity to spread (called “in situ”). The different terms used to describe her condition were similarly explained in a Cancer Research UK print-out produced during the hearing. Again, however, the tribunal failed to demonstrate that it had engaged with that material and conclude what it meant.

The EAT decided, therefore, that had the tribunal not failed to engage with the relevant medical evidence, it could only have reached one conclusion. That is, that Ms Lofty had an “in situ” melanoma, meaning that there were cancer cells in the top layer of her skin. As Parliament had decided not to distinguish between different types of cancer in terms of whether they were invasive or not the law was clear. Ms Lofty had cancer and therefore satisfied the definition of disability under the Equality Act.

The judge said that: “When determining whether a condition satisfies the deeming provision of paragraph 6, there is no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they have not reached a particular stage." The EAT therefore substituted its findings for that of the tribunal and remitted the matter back to the tribunal to determine Ms Lofty’s section 15 claim.