Disability Discrimination – Definition of Cancer

The Equality Act 2010 (“the Act”) protects individuals from discrimination because of a disability.

In a claim for disability discrimination, a Claimant must be able to demonstrate that they are ‘disabled’ within the meaning of s6 (1) of the Act. This section provides that a person is disabled if they have a mental or physical impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities. However, an individual will automatically meet the disability definition if they have cancer, HIV infection or multiple sclerosis – Schedule 1, paragraph 6 of the Act.

In the recent case of Lofty v Hamis [2018] UKEAT, the Employment Appeal Tribunal considered the meaning of ‘cancer’ for the purposes of the Act and held that it includes a pre-cancerous lesion. In this case, the EAT upheld the Claimant’s appeal of a tribunal decision, which provided that she did not have cancer because the lesion was pre-cancerous. The Tribunal had previously found that because the Claimant was successfully treated for a ‘pre-cancerous condition’, she had never had cancer. The EAT held that the law does not distinguish between invasive and other forms of cancer. They stated that “there is no justification for the introduction of distinctions between different types of cancer or for a tribunal to disregard cancerous conditions because they have not reached a particular stage”. They determined that the relevant point of determination is the point of diagnosis and not a point after treatment.

This decision is an important clarification and something that should be considered carefully by employer’s when considering their obligations under the Act.