Precancerous lesion held to be “cancer” under Equality Act 2010
Cecily Donoghue, employment solicitor in GL’s Bristol Employment team, reports on the recent Employment Appeal Tribunal decision in Lofty v Hamis where the tribunal considered the definition of “cancer”. The EAT has determined that pre-cancerous lesions can amount to “cancer” under the deemed disabilities listed in the Equality Act 2010.
- An employee, Mrs L, was diagnosed with a pre-cancerous lesion which could have resulted in skin cancer. Medical evidence confirmed that this was a cancer “in situ”, a type of the earliest stage of a skin cancer melanoma. The Cancer Research website described this as “stage 0” and that this was not invasive because it couldn’t spread to other parts of the body.
- Mrs L was signed off work for 4 weeks for surgery to remove the lesion in August 2015. By mid September she was informed that her latest biopsy was clear. She continued to be signed off until December 2015 for this and other related health issues including subsequent skin grafts and extreme anxiety.
- In the meantime, her employer sought to review her attendance and arrange various meetings with her. She failed to attend a number of meetings and her employer dismissed her as a result.
- Mrs L bought claims for disability discrimination arguing that she had been treated unfavourably for something “arising in consequence” to a disability (s15 Equality Act 2010).
The Equality Act 2010 (the Act)defines the technical legal meaning of disability, which often does not correspond with common perceptions of disability. These provisions are supplemented by Regulations which identify certain specific conditions which are deemed to be disabilities under the Act. The list includes blindness, cancer, HIV infection and multiple sclerosis. The case revolved around whether or not the pre-cancerous lesion was in fact cancer.
Her employer disputed that she was disabled and the tribunal agreed. It held that this was a “pre-cancerous” condition and therefore at no time had Mrs L suffered from cancer and therefore did not fall within the deemed disabilities listed in the Act.
Mrs L appealed arguing that the tribunal had misinterpreted the meaning of “cancer”.
- The EAT recognised that tribunals are not expert medical bodies and can therefore rely on the medical evidence before them.
- The Claimant had been diagnosed as having cancerous cells in her skin as cancer “in situ”. When drafting the Act, Parliament had not distinguished between different types of cancer. The EAT decided that it the protection should be extended to those who have received a diagnosis and might develop one of the listed conditions.
- The EAT therefore found that Mrs L did fall within the definition of disabled under the Act and allowed her appeal.
The EAT’s assessment of the diagnosis and application to the deemed disabilities list in the Act has broadened the scope of pre-cancerous diagnoses as being sufficient to amount to cancer – and crucially therefore a disability.
The employer’s argument is attractive in light of guidance that this was “pre-cancer” and the medical evidence that whilst the lesion could lead to cancer, this was not actually cancerous. However the EAT adopted a “straightforward” approach to the legal definitions and therefore Mrs L was only required to show that she had cancer. In evidencing that there were cancerous cells in the top layer of skin, this was sufficient and the appeal was allowed.
Whilst each case will involve careful consideration of the facts, be alive to any potential cancer or pre-cancer diagnosis.
If you have any queries or issues arising from this article please don’t hesitate to contact our Employment Team.