Lofty v Hamis T/A First Cafe UKEAT/0177/17/JOJ

Appeal against a finding that the Claimant was not disabled within the meaning of the EqA 2010. Appeal allowed.

The Claimant had been diagnosed as suffering from lentigo maligna, described as a pre-cancerous lesion which could result in lesion malignant melanoma (skin cancer). She had surgery and was then off sick for several months. She was dismissed after the Respondent sought unsuccessfully to meet with her to discuss her continued absence from work. The ET found that she had been dismissed for a potentially fair reason but her dismissal had been procedurally unfair and thus her complaint was upheld. The ET dismissed her complaint that her dismissal was an act of unlawful disability discrimination for the purpose of section 15 EqA. Having observed the Claimant's diagnosis as being of a "pre-cancerous" condition, the ET did not consider that she had established that she in fact had cancer so as to come within the deeming provision at paragraph 6 Schedule 1 EqA. The Claimant appealed.

The EAT allowed the appeal. The ET's reasoning failed to demonstrate it had engaged with the evidence before it, in particular from the Claimant's GP and the further clarification provided as to what was meant by "pre-cancerous" in terms of the Claimant's diagnosis. Having adduced evidence that there were cancerous cells in the top layer of skin - cancer in situ - she had done sufficient to discharge the burden of proof in this case.

Published: 13/03/2018 10:32

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