A problematic judgment last month from the Appeal Tribunal has been published concerning when a pre-cancerous growth should be treated as a disability.
Many conditions have to be assessed in terms of their impact upon an employee before an employer can truly know whether the employee has a disability. Many readers will be aware of the test being whether a condition has a “substantial long term effect on the ability to perform day to day tasks”. However, there is a list of conditions which automatically qualify for protection, such as HIV and cancer.
In the case of Lofty v Hamis, the employee had a pre-cancerous lesion on her face. This means it was not yet cancer, but might turn into cancer. Being on her face, it did not interfere too much with her day to day abilities, so the question was whether the lesions automatically qualified as cancer.
In a worrying judgment, it was ruled that it was not the business of a tribunal to try to diagnose the stage a cancer was at, and protection from discrimination should not depend on the stage of cancer in any event. Therefore the pre-cancerous lesion was a condition for which the employee was automatically protected.
What this means in practical terms is that an employer is under a duty not to discriminate if they know an employee has a condition which is not yet cancer but could turn into it.
There is an irony in the Tribunal deciding that it is not qualified to diagnose such conditions, and that is that the employer is now expected to have a greater understanding.
This underlines the need for greater diligence when an employer becomes aware of a condition that might become cancerous. A greater reliance on occupational health and GP reports will now be necessary, and specific questions to the GP should include the likely progress of any condition. Don’t just assume that because a condition is not yet cancer, it won’t provide a greater duty to make adjustments and avoid discrimination.