The EAT has held in Lofty v Hamis (t/a First Café) that a claimant who was diagnosed with a type of skin cancer described as "pre-cancerous" was disabled.
The claimant was dismissed following absences from work, at least some of which were related to treatment for her condition. The tribunal concluded that she did not have cancer within the meaning of the Equality Act 2010 (EqA 2010), however the EAT disagreed. According to the evidence presented to the tribunal the claimant had an in situ melanoma, which meant that there were cancer cells on the top layer of her skin. The evidence explained that "pre-cancer" may be regarded as medial shorthand for a particular stage in the development of cancer, and it does not mean that there is no cancer for the purposes of the EqA 2010. The EAT also noted evidence that Parliament has chosen not to differentiate between different types of cancer (such as invasive or not).
In another recent case (Toy v Chief Constable of Leicestershire) the EAT has held that a claimant's strong belief that he was dyslexic was not enough to ensure that his employer should be regarded as knowing, or should be reasonably expected to know, of his disability.
The claimant was a probationary Police Constable. His services were dispensed with during his probationary period, due to performance concerns. Whilst the termination process was ongoing he raised the possibility of dyslexia; he had not raised this previously. The EAT agreed with the tribunal that the respondent did not, and could not reasonably have been expected to know, that the claimant was disabled at the time. The claimant merely raised the possibility that he might be dyslexic and the tribunal was correct to conclude that he was "not clear or certain that he was dyslexic".
Take note: Following the decision in Lofty employers will need to be aware that a pre-cancerous condition may well be covered by the Equality Act 2010, and will therefore constitute a disability. Meanwhile, it will come as a relief to know that an employee's belief that they are disabled will not be enough to deem knowledge of a disability on the part of the employer.
This article is taken from HR Law - April 2018.
