A cancer diagnosis is automatically defined as a disability under the Equality Act (Schedule 1 para 6 Equality Act 2010). Cancers are assessed by two things – size of tumour and grade (meaning how aggressive the cells are), generally the smaller the number the better – so that ‘stage one grade one’ is the best of all outcomes for a cancer patient.

An early stage of breast cancer that is sometimes called Pre-Invasive or pre-cancerous is Ductal Carcinoma in Situ (DCIS). Whilst the cells are abnormal, they have not yet escaped the milk ducts and spread to the breast tissue. There is evidence to suggest that DCIS cells may never escape the ducts and that DCIS may never cause an invasive cancer. In the UK a large trial is underway (called LORIS) where patients can opt in to watch and wait (called ‘active monitoring’) with their DCIS. Women and men with DCIS have always been categorised as having cancer – regardless of the suggestion that it may be ‘pre-cancerous’.

In the very recent case of Lofty v Hamis ([2018] UKEAT 0177-17-1801), the suggestion that pre-cancerous cells could not be defined as cancer was tested in the EAT, albeit in relation to skin cancer.

The Claimant had precancerous cells which could have developed into a melanoma. She had successful surgical treatment to remove those cells before they had the opportunity to spread. An Employment Tribunal found that the Claimant did not have cancer, as the cells were pre-cancerous. The EAT however upheld the Claimant’s appeal. Specifically, the EAT held that whilst it is not sufficient that a Claimant might develop cancer in the future, the law does not distinguish between invasive and ‘other forms of’ cancer.

The EAT held ‘When determining whether a condition satisfies paragraph 6, there is no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they have not reached a particular stage.”

Written by Jo Mackie