Workplace disability discrimination protection for cancer victims has been widened as a result of a landmark legal case taken by Unite.
The legal victory will ensure that people suffering with ‘pre-cancer’ will be protected under the Equality Act 2010.
The case involves Unite member Christine Lofty who worked at First Café in Norwich for 14 years. In March 2015 a lesion on her face was diagnosed as pre-cancerous ‘lentigo malignia’ a form of melanoma. Mrs Lofty required biopsies, surgery and skin grafts and took sick leave from her work to undergo this potentially lifesaving treatment.
While Mrs Lofty was on sick leave her employer Sadek Hamis saw her in the street and decided that she had taken too much sick leave and dismissed her in December 2015.
Pre-cancer a disability
Unite Legal Services took a legal case on behalf of Mrs Lofty for unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010; as the pre-cancer cells amounted to having cancer which is considered a disability.
The Employment Tribunal was held in October 2016 and while Mrs Lofty won her claim for unfair dismissal the claim for discrimination was dismissed as the tribunal wrongly disagreed that she was disabled. The employment tribunal wrongly adjudicated that pre-cancer meant before cancer and that since Mrs Lofty was considered cancer free by September 2015 following successful early treatment, she had never had cancer.
The Employment Tribunal failed to take into account a letter from Mrs Lofty’s GP that “Mrs Lofty had cancer” and that “pre cancer” was a medical term for cancer that is for the moment contained. It is often described as “cancer in situ”.
Due to the mistake by the Employment Tribunal, Unite appealed the case to the Employment Appeals Tribunal (EAT) in January 2017, the appeal was heard in January 2018 and found in favour of Mrs Lofty.
The EAT decision, which is legally binding and will apply to other employment tribunal cases across the UK, agreed with Unite’s argument that pre-cancer is a form of cancer and therefore Mrs Lofty was deemed to be disabled at the point of diagnosis, which is when the Equality Act becomes relevant, rather than at the point of dismissal. All forms of cancer are given legal protection from discrimination under the Equality Act.
In their written judgement her honour Judge Eady QC, said the Equality Act “does not distinguish between invasive and other forms of cancer; it requires only that the claimant has cancer.” Judge Eady went on to rule that if the tribunal had “engaged with the evidence before it, it would have been bound to hold that she had cancer and thus fell within the deeming provision securing the protection of the Equality Act 2010”.
“This is a landmark case which will help ensure that employers cannot dismiss and discriminate against their workers who are suffering from any form of cancer,” said Unite assistant general secretary for legal services Howard Beckett.
“Workers who experience the anguish of developing cancer at work will be reassured that their employer can’t simply dismiss them because of their illness, as this is now clearly understood that all forms of cancer are legally protected,” he added. “This means that employers should be taking positive steps to make reasonable adjustments, as well as not discriminating by dismissal.”
“The fact that this case went to an Employment Appeal Tribunal means it is legally binding and can now be used in similar cases.
“Unite could not let this case drop as we had to ensure we won justice for victims of cancer.
“This was an extremely complicated case and without the support of Unite Legal Services, our member would not have received the legal redress for the discrimination that she suffered.
“Unite would like to place on record our thanks to Thompsons Solicitors for the advice and representation given to our member in this matter,” Beckett went on to say. “Thompsons stand shoulder to shoulder with the trade union movement and have once again shown themselves to be experts in their field.”
The case will now be referred back to an Employment Tribunal which will decide on Mrs Lofty’s claim for disability discrimination.