‘Pre-cancer’ still a deemed disability under the Equality Act 2010 (Lofty v Hamis t/a First Café, EAT)
In Lofty v Hamis t/a First Café the Employment Appeal Tribunal (“EAT”) held that a (“pre-cancerous”) form of cancer which was contained in skin layers and had not yet spread to other parts of the body constituted cancer for the purposes of the Equality Act 2010, and therefore a deemed disability.
The factual background of Lofty v Hamis t/a First Café
Ms Lofty worked as a cafe assistant. In or about summer of 2014 she became aware of a ‘blemish’ on her left cheek; after a biopsy in March 2015 the blemish was diagnosed as ‘lentigo maligna’ (a “pre-cancerous lesion which could result in lesion malignant melanoma (skin cancer)”). She underwent further surgery to remove the cancerous cells in April 2015 and subsequently 3 September 2015. This resulted her for being signed off work sick from 17 August 2015 for four weeks for “…surgery for Lentigo Maligna”. By mid-September 2015 she was informed that her latest biopsy was free of any form of possible cancer, but she continued to be signed off work until 17 December 2015 (for subsequent skin grafts and extreme anxiety).
Whilst Ms Lofty was signed off work sick it sought to undertake a review of her attendance. This led to her employment being terminated on 7 December 2015 due to her conduct in failing to attend meetings to discuss her continued absence from work.
Ms Lofty brought claims to the Employment Tribunal for unfair dismissal and discrimination arising from disability (section 15 Equality Act 2010). For the purposes of the discrimination claim she contended that she had a deemed disability (cancer) and that she was therefore a disabled person for the purposes of section 6 of the Equality Act 2010.
The decision of the Employment Tribunal
The Employment Tribunal held that Ms Lofty had been dismissed for a potentially fair reason but that her dismissal had been procedurally unfair – it therefore upheld her claim for unfair dismissal.
The Employment Tribunal considered evidence from Ms Lofty’s GP that her condition was a “pre-cancerous” condition and that ‘Lentigo Maligna’ is one of the earliest stages of a skin cancer called melanoma (with the cancer cells not having had the opportunity to spread anywhere else in the body).
The Employment Tribunal held that Ms Lofty’s condition did not amount to a disability as her condition was “pre-cancerous” and did not constitute cancer; she therefore did not have a ‘deemed disability’. The Tribunal went on to hold that her condition did not qualify as a disability for the purposes of section 6 Equality Act 2010.
Ms Lofty appealed against the decision of the Employment Tribunal in respect of its decision that she did not have cancer.
The decision of the Employment Appeal Tribunal
The EAT held that the Tribunal had failed to properly analyse the medical evidence provided by Ms Lofty to the Employment Tribunal. The EAT held that on the evidence before it the Tribunal could have only come to one conclusion: that Ms Lofty had cancer and therefore a deemed disability (as it had been established that there were cancerous cells within Ms Lofty’s skin, albeit that they had not spread to other parts of Ms Lofty’s body yet).
The EAT upheld Ms Lofty’s appeal and substituted a finding that she had met the definition of having a condition deemed to be a disability for the purposes of section 6 of Schedule 1 of the Equality Act 2010.
Our solicitors’ comments on Lofty v Hamis t/a First Café
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case demonstrates that an Employment Tribunal should not generally engage in nuanced analysis of whether a cancerous, or pre-cancerous, condition, whether minor or major in nature, is a disability. Any form of cancerous condition will almost always constitute a deemed disability under the Equality Act 2010.”
The transcript of the EAT’s decision in Lofty v Hamis t/a First Café can be found here.