What is ‘cancer’ for the purposes of Schedule 1, paragraph 6 Equality Act 2010 – does it include a pre-cancerous lesion?
Yes, according to the EAT in Lofty v Hamis.
Cancer is a ‘deemed' disability – Schedule 1, paragraph 6 Equality Act 2010 states that “cancer, HIV infection and multiple sclerosis are each a disability”. This means that there is no need for a Claimant to demonstrate an impairment with a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities as required by s 6(1) of the Act.
The Claimant suffered from a precancerous lesion which could have resulted in lesion malignant melanoma (skin cancer). She had successful surgical treatment to remove cancer cells from her face before they had the opportunity to spread. The EAT upheld the Claimant's appeal from a tribunal decision that the Claimant did not have cancer. The tribunal had found that because the Claimant was successfully treated for a ‘pre-cancerous condition’, she had never had cancer. The EAT determined that, in line with the Guidance, the relevant point of determination is the point of diagnosis and not a point after treatment.
The EAT held that whilst it is not sufficient that a Claimant might develop a relevant condition in the future, the law does not distinguish between invasive and other forms of cancer. “When determining whether a condition satisfies the deeming provision of paragraph 6, there is no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they have not reached a particular stage."
Thanks to Stephen Butler of Outer Temple Chambers for preparing this case summary.