Pre-Cancer

Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café  and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.

Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.

From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.

The case of Lofty concerned  whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may  develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.

It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.

However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.

What does this mean for workers and representatives?

There are I think a couple of points worth commenting on.

First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).

Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.