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  • Disability Discrimination – EAT Rules on Definition of Cancer

    15th May 2018

    Under Paragraph 6 of Schedule 1 of the Equality Act 2010, a person who has cancer is deemed to be disabled and is therefore protected under the Act without the need to prove that their condition has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities – but what exactly is cancer? That was the question before the Employment Appeal Tribunal (EAT) in Lofty v Hamis T/A First Café.

    Mrs Lofty began working as a café assistant for Eastern Counties Norwich Bus Drivers' Management Committee in 2001. In 2015, she noticed a blemish on her cheek and was diagnosed with lentigo maligna, a condition sometimes described as pre-cancerous, but which can lead to lesion malignant melanoma (skin cancer) if left untreated.

    Cancerous cells had been detected in her top layer of skin but, according to information on the Cancer Research UK website, her condition was not cancer in the true sense, as at that stage it could not spread to other parts of her body and was thus not considered invasive.

    During her treatment, Mrs Lofty's employment transferred to Mr Hamis after he bought the café business, which was based at the depot where he had worked as a bus driver, for £1. A short while later, she was signed off work so that she could have further surgery. A subsequent biopsy was clear of any cancer but she remained on sick leave thereafter, suffering from extreme anxiety. She was dismissed from her job after various failed attempts on the part of Mr Hamis to arrange meetings with her to discuss her continued absence from work.

    After Mrs Lofty launched proceedings, an Employment Tribunal (ET) found that she had been dismissed for a potentially fair reason, but that her dismissal was procedurally unfair. However, it went on to reject her disability discrimination claim on the basis that her condition was pre-cancerous and that she had at no time had cancer.

    In upholding her appeal against that ruling, the EAT found that the ET had failed to demonstrate any engagement with the relevant parts of the evidence before it, or to explain the conclusion it had reached. It had made no reference to information provided by Mrs Lofty's GP, which referred to advice from the British Association of Dermatologists that lentigo maligna is an 'in situ' melanoma, so called because the cancer cells have not had the opportunity to spread elsewhere in the body, or to his statement that Mrs Lofty had cancer.

    Cancer is deemed a disability from the point of diagnosis and no distinction is made between invasive and other forms of the disease. Had the Government wished to exclude minor cancers from the definition of disability, it had the power to do so, but there was evidence that it had concluded that this would introduce 'uncertainty and complexity' into the definition of disability and risk excluding more serious conditions.

    Having produced evidence of her diagnosis that there were cancerous cells in her top layer of skin, Mrs Lofty had discharged the burden of proof and established that she did have cancer and was thus disabled. Please contact Caroline Mitchell or Maxine Nutting in Devizes for advice on any discrimination law matter – 01380 722311.

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