Workplace protection for cancer sufferers was boosted by a landmark legal case supported by the Unite general union which should ensure that people suffering with “pre-cancer” will be protected under the Equality Act 2010.
The case involved 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. Lofty required biopsies, surgery and skin grafts and took sick leave from her work to undergo this potentially lifesaving treatment. While Lofty was on sick leave her employer Sadek Hamis sacked her in December 2015.
Unite took action for unfair dismissal and discrimination arising from disability as the pre-cancer cells amounted to having cancer which is considered a disability.
Lofty won her claim for unfair dismissal at the tribunal in October 2016, but the claim for discrimination was dismissed as the tribunal did not agree that she was disabled. However, the tribunal failed to take into account a letter from 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”.
Unite appealed the case to the Employment Appeal Tribunal (EAT) which found in favour of Lofty, agreeing with Unite’s argument that pre-cancer is a form of cancer and therefore 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 her written judgement, 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“.
Unite assistant general secretary for legal services Howard Beckett said: “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.
“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. 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.”