Discrimination in employment – are pre-cancerous conditions a disability?

The Equality Act 2010 prohibits discrimination in employment in respect of certain “protected characteristics”. One of these characteristics is disability.

In the majority of cases, those who are seeking to claim disability discrimination must satisfy the test for disability under the Equality Act. Namely they must show that they have a physical or mental impairment and that the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. An impairment is considered to be long-term if it has lasted at least 12 months; is likely to last 12 months or is likely to last for the rest of the life of the person affected.

However, there are some conditions which are automatically deemed to be disabilities for the purposes of the Equality Act and therefore the above test does not need to be satisfied. Cancer is one of those conditions.

But what if a condition is described as “pre-cancerous”? This precise issue was determined by the Employment Appeal Tribunal (EAT) in the case of Lofty v Hamis.

The Claimant (Mrs Lofty) was diagnosed with a type of skin cancer that was described as “pre-cancerous” and “in situ cancer”. Following a number of absences from work (some of which were related to the treatment of the condition), Mrs Lofty was dismissed. She brought proceedings for disability discrimination but the Employment Tribunal who first heard the case concluded that her condition did not fall within the meaning of cancer as stated in the Equality Act. The tribunal decided that as she was treated successfully for a ‘pre-cancerous condition’ and the condition was not invasive, she did not have cancer.  

Mrs Lofty appealed to the EAT. The EAT considered the evidence which suggested that the term “pre-cancerous” may be medical shorthand for describing a particular stage in the development of the cancer.  The EAT recognised that the term “pre-cancerous” may be interpreted differently depending on where the cancer cells are found but in relation to skin cancer, the evidence before them indicated that it was a type of cancer and therefore was a deemed disability for the purposes of the Equality Act. The EAT also noted that Parliament had not sought to distinguish between different types of cancers or specify the requirement that the cancer in question needed to be ‘invasive’.  Mrs Lofty was therefore successful in her appeal.

Considering the above decision, employers should take care before concluding that a “pre-cancerous” condition does not satisfy the definition of cancer in the Equality Act. Employers should ensure that they have strong medical evidence before reaching a conclusion and seek advice from an employment law specialist.

Carys Strong – Solicitor, Employment & HR at Berry Smith Lawyers

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 029 2034 5511 or employment@berrysmith.com