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9th April 2018

Tribunal Tale – Lofty v Hamis (t/a First Café)

Background

As we have written about before, disability discrimination is one of the more complex areas of employment law. For example, there are more possible claims under that heading than under other protected characteristics, such as a failure to make reasonable adjustments and discrimination arising from a disability. In addition, even determining whether an employee has a disability is no easy task.

The law provides some guidance in the form of a definition, namely that a disability is ‘a physical or mental impairment, which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’.

However, as with so many things in law, that ‘helpful’ definition usually only poses more questions than it answers, such as:

  1. Does the person have a physical or mental impairment?
  2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
  3. Is that effect substantial?
  4. Is that effect long-term?

In turn, answering those questions raises its own challenges, such as what constitutes ‘day-to-day activities’. It is little wonder that in many cases of disability discrimination, a preliminary hearing is required to determine whether the Claimant is disabled under the above definition.

There are some conditions that the law expressly deems to be disabilities, which means that the above quagmire of questions within questions can usually be avoided. Examples of deemed disabilities are blindness and sight impairment, severe disfigurements, HIV infection, multiple sclerosis and cancer.

On that basis, in relation to the latter, it can generally be assumed that an employee with a cancer diagnosis is a disabled person in law and is protected accordingly. However, even that (comparatively) straightforward definition can cause problems, as experienced by the employer in this recent case.

The ET and EAT’s decision

Mrs Lofty had a number of absences from work, some of which were due to her being diagnosed with a form of skin cancer. The medical documentation related to her condition described it as ‘pre-cancerous lesion that could result in skin cancer’, as well as ‘in-situ cancer’.

Mrs Lofty was dismissed because of her absence levels and brought a claim of disability discrimination. As outlined above, one of the tasks for the Employment Tribunal (ET) was to determine whether Mrs Lofty was a disabled person in law.

In making its decision, the ET placed particular focus on the term ‘pre-cancerous’, as well as on the medical opinion that the cancer had not yet become invasive, and eventually decided that Mrs Lofty did not have cancer and as such was not disabled. Mrs Lofty then appealed.

The Employment Appeal Tribunal (EAT) disagreed with the ET, finding that the medical evidence was clear that Mrs Lofty had cancerous cells in her skin. The EAT also stated the term ‘pre-cancer’ simply referred to a particular stage of the condition, and did not mean that there wasn’t yet any cancer. As a third point, the EAT noted that the law doesn’t make a distinction between invasive and non-invasive forms of cancer.

In short, the EAT held that Mrs Lofty did have cancer at the relevant time and was therefore disabled in law.

What does this mean?

If one considers the evolution of equality law in general, it is clear that protections afforded to employees have become ever-wider. Examples include an employee being able to claim discrimination because their employer perceives them to have a particular characteristic, or because they are associated with someone who does.

This case highlights that the same is true in relation to disability. While this decision does not change how cancer is regarded in terms of disability law, it does however serve as a reminder that interpreting the legislation on the definition of a disability (or a deemed disability such as cancer) too narrowly is unlikely to be a safe approach.

Given that some statistics estimate that as many as one person in five has some form of disability, making assumptions to the contrary is not without risk. Furthermore, putting too much focus on particular medical jargon such as ‘pre-cancerous’ and interpreting that jargon to the employee’s detriment is clearly no less risky.

On that basis, if terminology used in a medical report is unclear or ambiguous, a safer approach will be to ask for the diagnosis in layman’s terms rather than drawing your own conclusions.

If you have any questions on any of the issues raised in the above article, or if you would like further advice on calculating holiday entitlement or pay, please contact Seanpaul McCahill.

9th April 2018