Lofty v Hamis
In this case, the EAT has substituted a finding of disability in a case where the employee had skin cancer described by medical professionals as “pre-cancerous”.
Mrs Lofty was a café assistant working for Mr Hamis. She had a number of absences from work. Some of these were linked to treatment for her skin condition. She was later dismissed from work because of her absences and she brought claims for unfair dismissal and discrimination arising from disability.
The tribunal upheld her unfair dismissal complaint on the basis that her dismissal was procedurally unfair. However, it dismissed her disability discrimination claim on the basis that – 7 – www.wrigleys.co.uk she did not at any time actually have cancer and so was not disabled for the purposes of the Equality Act.
The EAT disagreed. On appeal, the Employment Appeal Tribunal (EAT) overturned the tribunal decision, holding that:
- The relevant point of determination is the point of diagnosis (and not after treatment).
- The evidence before the tribunal was that the claimant had “in situ” or “stage 0” melanoma i.e. cancerous cells in the top layer of her skin.
- “Pre-cancer” was on the evidence to be viewed as medical shorthand for a particular stage in the development of cancer. It did not mean that there was no cancer for the purposes of the Equality Act. The tribunal had failed to engage with the evidence presented to it. This evidence showed that Mrs Lofty did have cancer cells in the skin on her face. In some of the medical reports, her condition was described as “pre-cancerous”, but this referred to the fact that the cancer had not yet invaded the deeper layers of the skin.
- The law does not distinguish between invasive and other forms of cancer, and “there is no justification for … a tribunal to disregard cancerous conditions because they have not reached a particular stage”.
The EAT therefore substituted a finding that the claimant had a deemed disability – cancer – under the Equality Act. This makes it important that employers do not rely on medical shorthand. Pre-cancer is still cancer for the Equality Act.
PLEASE NOTE: Employers need to be aware that people who are diagnosed with CANCER, HIV OR MULTIPLE SCLEROSIS are deemed disabled and are protected by the legislation from the point at which they are diagnosed, whether they are suffering from any symptoms or not. In such cases, claimants are released from the usual requirement to demonstrate an impairment with a “substantial and long term adverse effect on their ability to carry out normal day-to-day activities” – the legal definition of a disability.