Do we really understand what is being said to us? Very often people may use words in a context, which is entirely natural and understandable in one area but which means something entirely different in another. When dealing with professionals, such as doctors, they may use words which have a clear and understandable meaning, but which have become a term of art, or shorthand, for something much more complicated.
The Equality Act provides that certain illnesses such as cancer are disabilities from the moment they are diagnosed. The issue in Mrs Lofty v Mr S Hamis t/a First Café was, what this meant for someone who had a “pre-cancerous” condition. Was she protected by the Act?
Mrs Lofty was diagnosed on 31 March 2015 with lentigo maligna. She was advised by her consultant that this was a “pre-cancerous lesion” which could result in malignant melanoma. The consultant also advised, after a biopsy, that there were some atypical changes that had not yet become lentigo maligna. In April 2015 Mrs Lofty underwent the first of three operations. She described it as an operation “to remove the cancerous cells from my face.” The last operation took place in September 2015 and her final sick note ran from 17 August to 17 September 2015.
However, she was dismissed on 7 December 2015 because she had failed to attend a number of meetings with her employer to review her absence. Although her dismissal was potentially fair, it was found to be procedurally unfair. However, the Tribunal concluded that she was not disabled because it found that she only had pre-cancerous cells.
In the EAT the only issue was whether Mrs Lofty was disabled. A British Association of Dermatologists leaflet described lentigo maligna as a condition where “the cancer cells have not had an opportunity to spread anywhere else in the body. There are cancer cells in the top layer of the skin...” . Her GP wrote a report saying that this was the “earliest stages of melanoma, this is a cancer in situ...Some doctors may call a cancer in situ or non-invasive, pre-cancer”.
In reaching its decision the EAT looked at the background and rationale for the introduction of the provision that deemed certain illnesses, such as cancer, as being a disability from the point of diagnosis. Part of the rationale was to avoid distinguishing between those who had particular types of minor cancer.
In finding in the Claimant’s favour the EAT concluded that (i) there was no justification for the introduction of distinctions between different types of cancer, (ii) it is undesirable for Tribunals to have to base their decisions on high level medical expert evidence as to what is and is not cancer, (iii) a claimant must have the condition, it is not enough that they might develop cancer.
What does this mean for employers?
Employers need to be sure that they fully and clearly understand an employee’s diagnosis. Something that is called pre-cancerous, by a doctor, may in fact be cancer, although it has not yet “learnt” to move around the body, to damaging effect. Words that have an everyday meaning may, when used by professionals in their particular professional context, take on a more subtle meaning, which the employer needs to understand. It is always a sensible precaution to ask someone to explain what words mean in a particular context.
Employers faced with a medical diagnosis should ensure that they understand what that diagnosis means. Accepting, the words used at face value may result in potentially difficult issues arising which might otherwise have been avoided.
If you would like further advice on any of the points raised then please contact the Employment Group on 0118 952 7284.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.