Pre-cancerous conditions having automatic protection under the Equality Act

You should be aware the Equality Act makes certain conditions such as Cancer, HIV and Multiple Sclerosis deemed disabilities i.e. anyone with that condition is protected by the legislation and they do not need to go to the lengths of proving that their medical condition has a substantial impact on normal day-to-day activities.

In the case of Lofty v Hamis t/a First Café the employee concerned had what her consultant described as a ‘pre-cancerous’ condition. The skin has five different layers with the top layer being the one that is about to be sloughed off. This cancer was in that top layer of skin. The Cancer Research UK advice in relation to such cancers are that an in-situ melanoma is not a cancer “in the true sense” because it cannot spread to other parts of the body. The employer relied upon this to argue that the employee concerned was not suffering from cancer. She’d undergone two operations to remove malignant cells which necessitated skin grafts and caused her extreme anxiety.

The Tribunal were clear that the employee had been unfairly dismissed because of the lack of process the employer had followed but found that she didn’t have a disability. It relied on the Consultant referring to the condition as ‘pre-cancerous’ and that following the operations it was confirmed that the employee had not gone on to develop skin cancer.

The employee appealed this finding arguing that although it was a stage zero cancer it didn’t mean it wasn’t cancer and that the legislation only refers to somebody having ‘cancer’. The Appeal Tribunal agreed – the way the legalisation worked was to avoid any unnecessary complexity and uncertainty, but it didn’t distinguish between those cancers that would go on to require substantial treatment and those cancers that do not, it merely requires the complainant to have one of the specified conditions. The EAT therefore substituted a finding that the employee had a deemed disability and it was sent back to the Tribunal to decide whether or not there was discrimination in relation to that disability.

This case shows the need to obtain advice when working with any medical situation rather than relying just on an ill-informed judgement and the width of the view that the Tribunals will take in such matters.