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Employment Law Case Update: Lofty v Hamis

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The Equality Act 2010 provides protection against discrimination which relates to certain listed characteristics which people may possess, including disability.

Section 6 of the Act defines disability as any physical or mental impairment which has a substantial and a long-term adverse effect on a person's ability to carry out normal day-to-day activities. People with particular illnesses are deemed disabled under Schedule 1 of the Act. Cancer, HIV and multiple sclerosis are considered to be a disability.

Mrs Lofty was a café assistant at Hamis trading as first café who was advised by a dermatologist that the biopsy result of a blemish on her cheek was consistent with lentigo maligna: ‘a precancerous lesion which could result in lesion malignant melanoma (skin cancer)’. She had several operations to remove the lesion from her face and had skin grafts. After her treatment she was informed that she was clear of any possible cancer. However she was signed off work, during and after the surgery, from 17 August 2015 and did not return to work. Due to problems with her attendance and arranging meetings to discuss the situation, the first café decided to dismiss the Mrs Lofty with effect from 17 December 2015.

Mrs Lofty claimed unfair dismissal believing that her dismissal was unlawful disability discrimination. The Employment Tribunal (ET) upheld the unfair dismissal complaint, on the basis that the dismissal had been procedurally unfair. In proceedings for alleged disability discrimination, it concluded that she did not have cancer within the meaning of the Equality Act 2010. Accordingly, she did not benefit from the Act’s provisions that deem cancer to be a disability. 

The ET appeared to have had particular regard to those parts of the medical evidence using the term "precancerous" and that the condition was not yet invasive. The Employment Appeal Tribunal (EAT) disagreed. The evidence before the ET was that Mrs Lofty had an in situ melanoma. That meant there were cancer cells in the top layer of her skin. The evidence explained that "pre-cancer" may be regarded as medical shorthand for a particular stage in the development of cancer; it does not mean there is no cancer for the purposes of the Equality Act 2010.

Her diagnosis was sufficient to demonstrate that she was disabled and entitled to protection. The EAT noted evidence that Parliament has chosen not to draw a distinction between invasive and other forms of cancer (such as invasive or not).

Although the EAT found Mrs Lofty disabled under the Equality Act 2010, they also commented that if the ‘precancerous’ cells were found elsewhere it may have led to a different outcome, and in cases of disability discrimination medical evidence should be carefully considered.

It is important for employers to note that it is not sufficient that a claimant might develop a condition in the future; they must actually have one of those conditions. Further, conditions cannot be disregarded because they have not reached a particular stage.

This article is from our weekly Employment Law Newsletter published on 19/04/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.