Recent forecasts provided by Cancer Research UK have provided the daunting statistic that each and every one of us has a 50 per cent chance of being diagnosed with cancer at some point in our lives. As per Schedule 1 Paragraph 6 of the Equality Act, 'cancer' is one of a small number of progressive illnesses which provide suffering employees with the automatic right to consider themselves as disabled. However, the definition of cancer is not elaborated upon to any great degree and this is not especially helpful, given the intricacies of each stage of the illness. Helpfully though, in the recent case of Lofty v Hamis t/a First Café, the Employment Appeal Tribunal (EAT) has managed to provide some clarity to this definition.
In this case, the Claimant received a diagnosis from her dermatologist of lentigo maligna, also known as melanoma-in-situ after she became aware of a blemish on her cheek. Whilst the effects of this particular type of cancer are undoubtedly extremely unpleasant for patients, it is still referred to by some doctors as a 'pre-cancer' and thus, according to the Cancer Research UK website, is not a cancer in the "true sense". Further to receiving this diagnosis, the Claimant underwent two biopsies over the summer of 2015. She was lucky enough to learn in September 2015 that her operations had been a success, and was consequently given the all-clear by her doctors. However, as one might expect, the effects of the condition did not disappear overnight and she was signed off work with extreme anxiety. Even more unfortunately for the Claimant, her employer dismissed her during this period following her failure to attend sickness-absence meetings.
For reasons that are not necessarily relevant to this blog, the Employment Tribunal (ET) found that the Claimant had indeed been unfairly dismissed, albeit only for procedural flaws in the Respondent's disciplinary process. Significantly, however, the Claimant's s15 claim, for discrimination arising from disability, was dismissed on the basis that the ET found that she did not have a disability. The Tribunal unanimously found that, as the Claimant had been diagnosed with a pre-cancerous condition in March 2015, and was told that she was clear of any type of skin cancer by September 2015, she did not actually have cancer at any material time and thus was not deemed to be disabled as per Schedule 1 of the Equality Act.
The EAT has now substituted this decision for a finding that she did indeed meet the definition of a disabled person for the purposes of Schedule 1. They came to this conclusion by, among other things, considering a 2007 parliamentary review with the Disability Rights Commission (DRC) which confirmed that it isn't possible to distinguish effectively between those people whose cancers are likely to go on to require substantial treatment and those whose cancers are not. The review noted that, by attempting to do so, the Government would be introducing "uncertainty and complexity" into the definition of the disability. It was clear from this review that the Government was concerned about the effect such ambiguity would have not only on those suffering from illnesses similar to the Claimant's own, but also the confusion that this grey-area would have on employers who may or may not need to be wary of potential discrimination claims against them. Further, the EAT noted that the diagnosis brought to the ET's attention confirmed that there were cancer cells in the top layer of the Claimant's skin and, whilst it may not be cancer in the "truest sense" only on the basis that it could not spread to other parts of the body, Schedule 1 does not distinguish between invasive and other forms of cancer.
Whilst the EAT found that the key issue was that the cancer should be assessed at the point of diagnosis rather than after the treatment, they did note that it wouldn't be sufficient for claimants to simply argue that they had a condition that might develop into cancer at some point in the future. Further, the definition of 'pre-cancerous' cells may actually differ depending on where they are found in the body. Nevertheless, it is important for employers now to note that, if they wish to argue that an employee had a 'pre-cancerous' condition which falls outside the scope of Schedule 1, it is likely that they, rather than the employee, would be the one requiring cogent medical evidence to support their argument.
Authored by Oliver Sargent and Joanne Frew