Disability Discrimination – when is cancer a disability?

Certain conditions are automatically deemed by the Equality Act 2010 to be disabilities.  These include cancer, HIV and multiple sclerosis irrespective of whether they are symptomatic.  Workers who are disabled within the meaning of the Equality Act are, of course, protected from being unlawfully discriminated against in the course  of their employment and their employer will be under a duty to consider making reasonable adjustments.

The recent case of Lofty v Hamis t/a First Café considered the question of what cancer is for these purposes. Ms Lofty suffered from a pre-cancerous lesion which could result in malignant melanoma or “skin cancer”.  She underwent a surgical procedure to remove the lesion.  She was later informed that her latest biopsy was clear of any possible cancer.  She was signed off work for surgery and thereafter she continued to be signed off for this and other related health issues and due to suffering extreme anxiety.   She was ultimately dismissed by her employer.  Ms Lofty complained that her dismissal was an act of unlawful disability discrimination and that she had a deemed disability, namely cancer, and was therefore protected under the Equality Act.  Her employer disagreed, disputing that she was a disabled person for the purposes of the Act.

The employment tribunal found that because Ms Lofty was successfully treated for a pre-cancerous condition she had never had cancer. Ms Lofty appealed to the Employment Appeal Tribunal (“EAT”)

The EAT disagreed and held that the law does not distinguish between invasive and other forms of cancer and that there was no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they had not reached a particular stage.  The evidence explained that “pre-cancer” may be regarded as medical shorthand for a particular stage in the development of cancer; it does not mean that there is no cancer for the purposes of the Equality Act.  She was therefore deemed to be disabled on account of having had cancer.

The decision confirms that cancerous conditions will be  deemed disabilities under the Equality  Act irrespective of the stage they have reached.