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Is a pre-cancerous condition covered by the Equality Act?

BY Sophie Macphail
Employment Law & HR

In a recent judgment the EAT has given guidance on when a pre-cancerous condition will be covered by the Equality Act. The Equality Act sets out that cancer is an automatic disability but does not give guidance on what particular diagnosis must be given in order to invoke this protection. In Lofty v Hamis (t/a First Café) UKEAT/0177/17 the EAT found that a pre-cancerous condition did fall within the definition of cancer in the legislation.

At first instance the employment tribunal at first instance found Mrs Lofty’s skin condition (lentigo maligna) was not a disability. The claimant was dismissed following absence from work related to her medical treatment. Her skin condition was described by medical experts as “pre-cancerous” and “in situ cancer”. The tribunal found that there was a distinction to be made between the stage at which cancerous cells which had become invasive, and the period prior to this stage.

The EAT overturned that ruling, finding that there was no justification in making a distinction between invasive and non-invasive cancer. The evidence before the tribunal was that cancerous cells were present in Mrs Lofty’s skin and therefore her condition constituted automatically-protected cancer for the purposes of the Equality Act.

The ruling serves as a warning to employers to be careful not to rely too heavily on shorthand labels placed on diagnoses by medical experts when making a determination about whether a condition amounts to a disability.

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