Disability Discrimination Case

Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

It is common knowledge that  cancer is considered to be a disability without the need to establish a substantial and long term effect as is otherwise required.

However in the case of Lofty –v- Hamis, the Claimant suffered from pre-cancerous lesions which ultimately could have resulted in skin cancer.

The Claimant received appropriate treatment, which proved successful in preventing her from having cancer, and therefore the employers made a decision that she could not have been deemed as disabled.  The EAT disagreed.

The EAT held that the relevant point of determination is the point of diagnosis not the point after treatment had been received.   It was argued that whereas it would not be sufficient that a claimant might develop the condition in the future, the law did not distinguish between invasive cancer and other forms of cancer.

So with conditions that are deemed to be a disability such as cancer, HIV and MS, employees should be more wary of steps they may be required to take, if for example there is a period of remission etc.

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