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Is a pre-cancerous condition deemed to be a disability?
Under the Equality Act 2010 (EqA), a condition which affects a person’s ability to carry out day-to-day tasks for a significant period of time is deemed to be a disability. A significant period of time is typically at least 12 months. Whilst cancer will always be deemed a disability, what if the condition is described as being “pre-cancerous?”
In the case of Lofty v Hamis the Employment Appeal Tribunal (EAT) considered whether a person who had a form of skin cancer which was diagnosed as being “pre-cancerous” fell within the description of a disability under the EqA.
Mrs Lofty was dismissed following a period of absence from work. Whilst some of her absence was in relation to her condition, she was also absent due to suffering from, amongst other conditions, extreme anxiety. Initially, the Tribunal had found that Mrs Lofty was dismissed for a potentially fair reason. However, the dismissal was deemed to have been procedurally unfair. The reasoning behind this being that the ET found that she wasn’t disabled due to her condition not (yet) being invasive.
However, the EAT disagreed with this finding and considered the evidence put forward by Mrs Lofty’s GP which highlighted that she had an “in situ melanoma”, where cancer cells are present in the top layer of skin. It was explained by her GP that if she failed to undergo surgery then her condition would ultimately develop into cancer. In addition it was explained that the term “pre-cancerous” is often used as a medical shorthand description for a particular stage in the development of cancer. Therefore, this didn’t mean that there was an absence of cancer, but that it was instead cancer in an early form.
Finally, the EAT found that Mrs Lofty’s condition had satisfied the definition of a disability under the EqA. This was due to the fact that a diagnosis of “pre-cancerous” can mean different things dependant on where the cells can be found.
Therefore, in light of this decision employers should ensure that they obtain all the appropriate medical evidence available, prior to commencing any capability process. In addition, a full investigation should take place alongside obtaining expert advice if necessary. This is of particular importance where there is any suspicion that the employee may have a disability.
Should you need any assistance with managing cancer within the workplace, then please don’t hesitate to contact a member of the team.