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Disability discrimination – pre-cancerous condition

Cancer is a deemed disability under the Equality Act 2010, along with MS and HIV.  This means that the usual test for disability does not apply in the case of cancer.

That seems fairly straightforward but a recent case assessed at what stage a person can be said to have cancer? In particular, if there was successful treatment to stop cancerous cells from spreading, would the employee still be deemed disabled?

Lofty v Hamis t/a First Café

Mrs Lofty was employed as a café assistant, initially having started her employment for the Eastern Counties Norwich Bus Drivers’ Canteen Management Committee in September 2001. In 2015, she had transferred to work for Mr Hamis under TUPE. In 2014 she became aware of a blemish on her left cheek and underwent an initial biopsy in March 2015. She was advised by her consultant dermatologist that the biopsy result was consistent with lentigo maligna: “a precancerous lesion which could result in lesion malignant melanoma (skin cancer) with some atypical changes“.

Having undergone another operation to remove the cancerous cells from her face, the doctor recommended Mrs Lofty to have further surgery and a skin graft, which was done in August 2015, during which time she was signed off work for 4 weeks. By mid-September it was confirmed she was clear of any possible cancer but she remained signed off work until December 2015 having had further skin grafts and suffering from extreme anxiety.

Meanwhile, Mr Hamis undertook a review of Mrs Lofty’s attendance and arranged various meetings with her, although Mrs Lofty did not attend all arranged meetings.  These difficulties ultimately led to Mrs Lofty’s employment terminating in December 2015, due to her conduct in failing to attend meetings to discuss her continued absence from work.

Mrs Lofty brought claims for unfair dismissal and disability discrimination.

Decision

The Employment Tribunal found Mrs Lofty had been dismissed for a potentially fair reason but her dismissal had been procedurally unfair and thus her complaint was upheld.

The Employment Tribunal further decided that Mrs Lofty’s condition, ‘in-sita’ cancer – a very early stage of non-invasive cancer, was not cancer for the purposes of the Equality Act 2010, meaning that she did not have a deemed disability and the disability discrimination claim could not succeed.  Mrs Lofty appealed against this finding.

The EAT found that Mrs Lofty’s condition was cancer and therefore she was deemed to have a disability under the Equality Act 2010.

The Employment Appeal Tribunal considered whether her pre-cancerous condition constituted cancer. At the trial it became evident that lentigo maligna is one type of the earliest stage of a skin cancer called melanoma and that to describe the cancer cells as ‘in situ’ meant that they had not had the opportunity to spread or to ‘invade’ but would if left untreated. Her condition was, therefore, cancer.

The judge emphasised that Parliament had chosen not to exclude minor cancers from the Equality Act 2010, which was intended to avoid unnecessary complexity and uncertainty. If it became necessary to speculate on the severity of a cancerous condition, it would lead to unfair and unequal outcomes for disabled people, and make it difficult for employers and others with responsibilities under the Act to understand and comply with their duties. There was no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they have not reached a particular stage.

Comment

Although an unusual set of circumstances, this case reaffirms that cancer is a disability irrespective of what stage of cancer.  This would trigger the duty to make reasonable adjustments, which in cases similar to that above would almost certainly mean adjusting absence triggers and capability processes to allow time for treatment and recovery.

In considering whether to terminate the employment of an employee with a disability, it is important that alternatives to dismissal have been considered, including redeployment to an alternative role (with or without adjustment). Dismissal should only be considered at a point where an imminent return looks unlikely, or absence levels have remained unmanageable with no prospect of improvement and the organisation can no longer support the absence/absence levels. Finally, up to date medical advice must be obtained and the employee must be consulted about such advice.

Employers are well-advised to refer an employee with a suspected disability for an occupational health assessment and Baines Wilson is able to recommend providers. Occupational health assessments are undertaken by practitioners with a specific emphasis on the workplace and practical suggestions to overcome any disadvantages caused by a disability (or health-issue which may not be a disability). This, in turn, enables the employer to determine whether the employee is capable of performing his or her current functions, whether any suggested adjustments are feasible, whether the employee should be offered a different role or whether to consider termination of employment.

If you have any queries relating to disability, occupational health advice,  or any other HR or employment law questions then please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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