Does the Equality Act 2010 differentiate between different stages of cancer?
Individuals who have been diagnosed with cancer are automatically deemed to be disabled under the Equality Act 2010, providing them with protection against discrimination.
In Lofty v Hamis t/a First Café, the employee had a biopsy on a skin blemish. In March 2015, her consultant informed her she had lentigo maligna which was described as “a precancerous lesion which could result in lesion malignant melanoma (skin cancer)”. A second biopsy resulted in day surgey in April, with further surgery and a skin grant recommended in May.
The employee had a 4-week absence in August 2015 to undergo further surgeries. By the middle of September, she was informed her biopsy was clear of cancer. The employee continued to be signed off work until 17th December for health-related issues, including anxiety and further skin grafts.
During this time, the employer reviewed her attendance and arranged meetings to discuss her absence from work. On 7th December, the employer sent a letter dismissing the employee for misconduct due to failing to attend these meetings. The employee made an unfair dismissal claim and a claim of disability discrimination arising from her disability i.e. cancer.
The tribunal had to first consider whether the employee’s diagnosis meant she had cancer. Various evidence was produced, including a letter from her GP which described lentigo malligna as a “precancerous condition” which would develop into cancer without treatment or surgery. The British Association of Dermatologists described it as “one type of the earliest stage of a skin cancer called melanoma” but went on to state it was “’in-situ’ melanoma” which some doctors would call “pre-cancer”. Cancer Research UK guidance also explained “some doctors call in situ cancers pre cancer”.
On the evidence, the employment tribunal determined the employee had been initially diagnosed with a pre-cancerous condition. From September 2015, the employee’s biopsies showed there was no skin cancer evident. As such, the tribunal concluded the employee did not have cancer at any time so was not disabled.
On appeal, the Employment Appeal Tribunal (EAT) highlighted that the Equality Act only requires the individual to have “cancer” meaning:
• Distinctions should not be drawn between different types of cancer e.g. invasive and non-invasive;
• Cancerous conditions must not be disregarded because they haven’t reached a particular stage; and
• Whether the individual has cancer should be decided based on the evidence.
In this case, the evidence showed the employee had in situ melanoma; cancer cells in the top layer of her skin. Therefore, she had cancer and fell within the protection of the Equality Act.
What this means for employers:
• Employees will be protected under the legislation where they have been diagnosed with cancer;
• Employers need to ensure they have all relevant medical advice and information before deciding whether a “pre-cancerous” diagnosis will be deemed as ‘cancer’ or not;
• Individuals who are diagnosed with cancer are deemed to be disabled from the time of diagnosis – there is no requirement that the cancer has progressed to a certain stage.
• Employees with cancer cannot be treated less favourably because of their disability or because of matters arising from their disability e.g. high levels of absence for treatment.