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Understanding Cancer & the Equality Act 2010

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Understanding Cancer & the Equality Act 2010

Understanding Cancer & the Equality Act 2010

There are certain characteristics of an individual which fall under the Equality Act 2010 and prevent an individual from being discriminated against because they have one or more of those characteristics. These are known as “protected characteristics”, an example of which is disability.

In the case of Lofty v Hamis (2018) (“Lofty”) the Claimant was dismissed by her employer. The Claimant had time off work for undergoing surgery to remove “lentigo maligna” (“LM”) which, as described by the Claimant’s Consultant, was a pre-cancerous lesion which could result in skin cancer. Additionally, the Claimant had time off sick and failed to meet with her employer to discuss her absence from work.

The Claimant issued a claim with the Employment Tribunal (“ET”) on the grounds of unfair dismissal and disability discrimination. Specifically, the Claimant sought to rely on paragraph 6, schedule 1 of the EQA 2010 which deems cancer to be a disability.

The ET held that the Claimant’s LM was “in situ” melanoma. The ET had been referred by the Respondent to information produced by Cancer Research UK, which indicated that the Claimant’s condition could be described as “in situ” cancer. The information from Cancer Research UK also stated that “in situ” cancer was not cancer in the true sense, because it cannot spread to other parts of the body and is therefore not invasive. Accordingly, the ET held that the Claimant was not disabled under the EQA 2010.

The claim progressed to the Employment Appeal Tribunal (“EAT”) and the EAT overturned the ET’s decision. The EAT held that paragraph 6, schedule 1 of the EQA 2010 does not distinguish between invasive and non-invasive cancer and specifically that when drafting paragraph 6, schedule 1, Parliament had clearly chosen not to make this distinction. The EAT held that there was “no justification for the introduction of distinctions between different cancers or for an ET to disregard cancerous conditions because they have not reached a particular stage.”

Lofty clarifies that there should be no disregard of conditions because they have not reached a certain stage and no distinction should be made between invasive or non-invasive forms of cancer for the purposes of the EQA 2010.

If you would like more information on this or other workplace discrimination topics, please contact Annette Parker or give the employment team a call on 0345 070 6000.