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Disability Discrimination – Tribunal Rules on Definition of Cancer

It is hardly surprising that anyone suffering from cancer is deemed to be disabled under the Equality Act 2010 – but what exactly is cancer? The Employment Appeal Tribunal (EAT) considered that issue in an important test case.

The case concerned a catering worker who, after noticing a blemish on her cheek, was diagnosed with lentigo maligna, a condition described as pre-cancerous, but which can lead to malignant melanoma if left untreated. Cancerous cells had been detected in her top layer of skin but, according to the Cancer Research UK website, her condition was not cancer in the true sense, in that it could not spread to other parts of her body and was thus not considered invasive.

The woman was signed off work so she could have an operation to remove the lesion but remained on sick leave thereafter, suffering from extreme anxiety. She was dismissed from her job on the basis that she had failed to attend meetings to discuss her continued absence from work.

After she launched proceedings, an Employment Tribunal (ET) found that she had been dismissed for a potentially fair reason, but that her dismissal was procedurally unfair. However, it went on to reject her disability discrimination claim on the basis that her condition was pre-cancerous and that she had at no time had cancer.

In upholding her appeal against that ruling, the EAT found that the ET had failed to engage with the evidence before it, particularly that given by the woman’s GP. On a true reading of the Act, it was apparent that Parliament had not intended to exclude minor cancers from the definition of disability. Having produced evidence that there were cancerous cells in her top layer of skin, the woman had discharged the burden of proof and established that she did have cancer and was thus disabled.

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