What is ‘cancer’ for the purposes of the Equality Act 2010? Does it include, for example, a pre-cancerous lesion?
Cancer is a disability
Cancer is a ‘deemed' disability. Schedule 1, paragraph 6 of the 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 their ability to carry out normal day-to-day activities (as required by s 6(1) of the Act).
A recent case in the Employment Appeal Tribunal looked at this. The case was Lofty v Hamis.
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 Employment Tribunal's decision was that the Claimant did not have cancer. The tribunal found that, because the Claimant was successfully treated for a ‘pre-cancerous condition’, she had never had cancer.
However, the Employment Appeal Tribunal upheld the Claimant's appeal. It determined that, in line with the guidance, the relevant point of determination is the point of diagnosis and not a point after treatment.
When does a condition qualify as a disability?
Kate Fretten, a Partner in our Employment Team, says "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 the Equality Act, there is no justification for the introduction of distinctions between different cancers. Neither should a Tribunal disregard cancerous conditions because they have not reached a particular stage."
Supporting employees with cancer
For those going through an illness such as cancer, discrimination can unfortunately be a stressful part of their experience, despite the disability protection offered from unfair treatment at work.
Research from Macmillan Cancer Support, exploring the impact of cancer on working life, found that nearly a fifth of people (18%) who return to work after being diagnosed with cancer say they faced discrimination from their employer or colleagues.
In addition, more than a third (35%) report other negative experiences, such as feeling guilty for taking time off, or a loss of confidence in their ability to do their job. Worryingly, 1 in 7 (15%) say they returned to work ‘before they felt ready’, while 14% of people gave up work altogether or were made redundant because of their diagnosis.
It is therefore key that HR professionals and line managers have the skills to support staff affected by cancer. It is also vital that employers fulfil their legal obligations to make reasonable adjustments, enabling employees with cancer to stay in or return to work, if they want to.
Where reasonable, employers should make changes to help the employee with cancer do their job during and after treatment, and aid them in overcoming the disadvantage they face as a consequence of their cancer. These changes are known as ‘reasonable adjustments’.
These could be anything from allowing time off to go to medical appointments to working flexible hours, or enabling a phased return to work. Often these small changes can make a big difference, and can help support your employee to continue with work if they choose to do so.
Does your business have a cancer-specific policy?
Employers could take steps to introduce a cancer-specific policy, or to simply review existing policies to ensure they can be easily interpreted and applied to people with long-term conditions such as cancer.
It’s important that these policies are up to date and regularly reviewed to meet the latest requirements. They can be beneficial because it:
- Meets the legal responsibilities as an employer under the Equality Act 2010
- Provides a framework for supporting employees affected by cancer and ensures that all employees are treated fairly and consistently
- Provides guidance to managers and alerts staff to sources of information
- Reassures employees that they are valued and enhances the company’s reputation as a good employer
Please get in touch if we can assist in drafting policies regarding supporting and handling people affected by cancer in the workplace and also for supporting staff who are caring for someone with a long-term condition.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.