‘Pre-cancerous’ condition: disability or not?

Under the Equality Act 2010, cancer is a deemed disability from the point of diagnosis.  HIV infection and multiple sclerosis are afforded the same protection.  This means that employees diagnosed with cancer, HIV or MS, gain the protection of the anti-discrimination provisions of the Act immediately after diagnosis, without having to show that their condition meets the ‘long-term’ criterion (has lasted or is likely to last 12 months or more) that other conditions need to in order to be classed as disabilities.

In the case of Lofty v Hamis, the relevant condition was a pre-cancerous skin lesion on Ms Lofty’s face.  Ms Lofty had surgical treatment to remove cancer cells before they had the opportunity to spread.  The EAT, reversing an earlier finding of the Tribunal, found that Ms Lofty’s condition met the definition of a deemed disability on the basis that her condition, while pre-cancerous, still met the definition of a cancer.  The EAT were keen to emphasise that the law does not distinguish between different cancers or disregard certain cancers because they have not reached a particular stage.

In what some may view as a surprising decision, it is important to appreciate that cancer, of any type or at any stage, will be a deemed disability under the Equality Act 2010, and therefore employers need to appreciate that once you are on notice that one of your employees is suffering from any type of cancer, even if the diagnosis is that it is very early stages, you should proceed on the basis that the employee has a disability and not subject them to less favourable treatment and/or fail to make reasonable adjustments where their condition places them at a substantial disadvantage.

If you want to discuss the implications of this decision on your business, please contact Tiggy or Emma.

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