The Equality Act 2010 ensures employers make reasonable adjustments for employees with a disability and protects them from suffering detriment due to their condition. Cancer is included expressly as a disability but what exactly does this include?
In the case of Lofty v Hamis the Employment Appeal Tribunal confirmed that the ‘pre-cancerous’ skin condition Lentigo Maligna did amount to cancer within the definition of the Act and therefore awarded protection from detriment.
This condition is understood to have the existence of cancer cells sat in the surface of the skin, but isn’t typically deemed cancer as the cells cannot spread to other parts of the body. The EAT have assessed the specific terminology by the Equality Act and have found that cancer was not specifically defined and so it was possible to consider the claimant’s condition to fall within the definition.
This case serves as warning to employers to consider the full facts of an employee’s condition before concluding hastily whether they have a disability or not. There are many pre-cancerous conditions that could result in employees needing treatment, time away from work, adjustments in the workplace and recovery periods; it may not always be obvious whether the condition results in the benefits offered by legislation.
Initial preventative or investigatory medical appointments are not generally considered to be included in the protections of the Act as there is no diagnosis. Appointments for prostate checks, smear tests and breast examinations are examples of appointments that may be necessary to prevent and/or detect cancer cells, however they generally pre-date a diagnosis. Where the employer will have to be more cautious is when there is a discovery of a condition that could result in cancer in the long term; in these cases it is advisable to make allowances for the employee.
Our consultants are ready to advise you on a range of employee management options in light of medical conditions which require reasonable adjustments in the workplace or may result in higher frequency sickness absence.
It is sensible to ensure you have a sound absence/ill health management policy in place and always ensure that an employee feels welcome to share sensitive information with you. The more comfortable your employees feel with you the more trust and confidence you will generate and the better your business can function whilst honouring your responsibilities to employees.