94: Employment Appeal Tribunal rules that employee with ‘pre-cancerous lesion’ had a deemed disability

Under the Equality Act 2010, employees who have been diagnosed with cancer are deemed to be disabled and therefore do not have to satisfy the usual definition of disability. In Lofty v Hamis (t/a First Café), the Employment Appeal Tribunal (EAT) held that an employee who had a ‘pre-cancerous’ skin lesion was deemed to be disabled.

Mrs Lofty was dismissed following absences from work, at least some of which related to treatment for lentigo melanoma, a type of melanoma, as well as associated health issues. She brought a claim for disability discrimination on the basis that she had a deemed disability.

The Employment Tribunal held that Mrs Lofty was not disabled because her skin condition was described as ‘pre-cancerous’ and non-invasive, meaning that it could not amount to cancer. However, on appeal, the EAT overturned this decision, finding that the Tribunal had ignored medical evidence which had clarified that the term ‘pre-cancer’ is medical shorthand for a particular stage in the development of skin cancer; it does not mean that there is no cancer. The EAT also noted that Parliament had chosen not to differentiate between different types of cancer in the Equality Act, such as invasive or non-invasive. Mrs Lofty had an ‘in situ’ melanoma, the early stages of skin cancer where cancer cells were present in the top layer of skin. The EAT therefore substituted a finding that she was disabled.

This case highlights the risks in failing to look beyond terminology and assuming that a condition described as ‘pre-cancerous’ is not cancer. Although it was clear in this case that pre-cancer is a type of skin cancer, the EAT also noted that the meaning of ‘pre-cancerous’ will vary depending on where the cells are located. This means that obtaining expert medical advice will be crucial when seeking to establish whether an employee with a pre-cancerous condition has a deemed disability for the purposes of the Equality Act.