Pre Cancerous Condition Deemed a Disability

March 9, 2018, By

The Employment Appeal Tribunal in the case of Lofty v Hamis t/a First Café considered whether a pre-cancerous condition amounted to a disability in the accordance with the Equality Act 2010.

The Claimant, Ms Lofty, discovered a blemish on her cheek which, following tests, was described by her consultant as a “pre-cancerous lesion, which could result in [skin cancer]”.  The evidence before the Tribunal was that Ms Lofty had an “in situ” melanoma, which is cancer cells in the top layer of the skin.  Ms Lofty underwent operations to remove the malignant cells but continued to be signed off work on sickness grounds, which included subsequent skin grafts and anxiety.  Ms Lofty’s employment was eventually terminated by the Respondent and Ms Lofty brought claims in the Employment Tribunal for unfair dismissal and disability discrimination. The Employment Tribunal upheld Ms Lofty’s unfair dismissal claim but found that Ms Lofty’s condition did not amount to a disability in accordance with the Equality Act 2010.  Ms Lofty appealed the Employment Tribunal’s decision to the Employment Appeal Tribunal.

The Employment Appeal Tribunal considered whether Ms Lofty’s “pre-cancerous” condition amounted to a disability.  It is worth noting that the Equality Act 2010 deems cancer to be a disability.  Having reviewed the relevant legislation and commentary on the subject, the Employment Appeal Tribunal decided that, although a diagnosis of “pre-cancerous” cells might well mean something different depending upon where the cells are to be found, in terms of skin cancer, the evidence before it meant that Ms Lofty did have an “in situ” cancer.  This, in the Employment Appeal Tribunal’s view, meant that Ms Lofty did have a deemed disability in accordance with the Equality Act 2010.