Lofty v Hamis (t/a First Café)

Schedule 1 paragraph 6 of the Equality Act 2010 requires a straightforward inquiry: whether the claimant had cancer. It does not distinguish between invasive cancers and cancer in situ, or exclude cancer because it has not reached a particular stage. A claimant who establishes the presence of cancerous cells in the epidermis has established cancer for that provision.

The provision does not extend to a condition which may develop into cancer in the future. An Employment Tribunal must, however, engage with all material medical evidence and explain why it rejects evidence directly bearing on whether the claimant had cancer.

The claimant, a café assistant, was dismissed after periods of absence connected with treatment for lentigo maligna on her cheek. She brought claims of unfair dismissal and disability discrimination under section 15 of the Equality Act 2010.

The Employment Tribunal upheld her unfair-dismissal complaint but held that she was not disabled. It treated lentigo maligna as a pre-cancerous condition and found that she had never had cancer. It therefore declined jurisdiction over the disability-discrimination claim.

On appeal, the claimant relied on evidence from her GP and medical literature stating that lentigo maligna was melanoma in situ, with cancerous cells in the top layer of skin. The central issue was whether that condition amounted to cancer within Schedule 1 paragraph 6 of the Act.

1. Appeal allowed. The Employment Tribunal's finding that the claimant was not disabled was set aside and replaced with a finding that she had a condition deemed to be a disability under Schedule 1 paragraph 6 of the Equality Act 2010.

2. The Tribunal's reasons did not demonstrate engagement with the material evidence. In particular, it did not address the GP's direct evidence that the claimant had cancer, or the explanation that the description “pre-cancer” could refer to cancer in situ. If it preferred other material or rejected that evidence, it had to explain why.

3. Schedule 1 paragraph 6 was intended to avoid complexity and uncertainty. Its application required the simple question whether the claimant had cancer. Parliament did not draw a distinction between invasive and non-invasive cancer, between different stages of cancer, or between minor and more serious cancers.

4. The evidence showed that the claimant had melanoma in situ: cancerous cells were present in the epidermis, although they had not spread into deeper skin layers. The respondent's material confirmed that description. It did not alter the fact that the claimant had cancer for the purpose of paragraph 6.

5. The deeming provision nevertheless requires a claimant to have one of its specified conditions. It does not protect a person merely because they might develop cancer in future. On the evidence before the Tribunal, however, the only lawful conclusion was that the claimant had cancer and was therefore disabled.

• Employment Appeal Tribunal: Allowed the claimant's appeal and substituted a finding that she was disabled by virtue of Schedule 1 paragraph 6 of the Equality Act 2010.
• Employment Tribunal, Bury St Edmunds: Reserved judgment sent on 9 December 2016. It upheld the unfair-dismissal complaint but found that the claimant was not disabled and therefore had no jurisdiction to determine the section 15 disability-discrimination claim.