Siobhan Murphy
Posted on 9 Nov 2021

At what point in time is a person who has cancer deemed disabled under the Equality Act 2010?

Bennett v MiTAC Europe Ltd (EA-2020-000349-LA)

Background

On 19 March 2018, the Claimant commenced employment with the Respondent as a UK Sales Manager. He worked alongside his manager who, on 20 April 2018, became very ill and was rushed to hospital with a possible heart attack. The next day, the manager informed the Respondent that the hospital had found a growth on one of his kidneys, but that he would need a biopsy to get a formal diagnosis. On 7 August 2018, the manager was formally diagnosed with cancer and immediately informed the Respondent.

Throughout the year, the Respondent's management had concerns about the performance of the business in the UK. On 4 September 2018, the Respondent ultimately dismissed both the Claimant and his manager for "poor performance". The Claimant brought a claim alleging direct disability discrimination based on his manager’s disability.

What is the test for a disability?

Section 6 of the Equality Act 2010 ("EqA 2010") defines a 'disability' as a physical or mental impairment, which has a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities.

What automatically meets the definition of a 'disability'?

Under paragraph 6 of Schedule 1 of EqA 2010, cancer, HIV and multiple sclerosis are considered to be a disability regardless of the test set out above. According to the statutory guidance on the EqA 2010 (here), a person who has one of these illnesses will be protected "effectively from diagnosis".

What is the burden of proof for showing disability discrimination?

Claimants bear the initial burden of proving that they have been discriminated against. The EqA 2010 prescribes a two-stage process for dealing with the burden of proof:

  1. The Employment Tribunal ("ET") must consider (based on all the evidence) if there are facts from which it could decide, in the absence of any other explanation, that a person ("R") contravened the equality provision concerned.
  2. If stage 1 is satisfied, the ET must hold that the contravention occurred, unless R shows that R did not contravene the provision.

The decision of the ET in Bennett

The ET dismissed the claim, holding that the Claimant’s dismissal was due to poor performance and not direct discrimination. When considering whether the Respondent had knowledge of the disability, there was a focus on when the Respondent became aware that the manager had a diagnosis of cancer. It was stated that "an employer does not directly discriminate against an employee because of disability unless it has knowledge of the diagnosis".

On this basis, whilst it was held that the burden of proof had shifted from the Claimant to the Respondent, the ET decided that the Respondent had discharged the burden (despite the fact that it did not call the decision maker to give evidence).

The Claimant appealed to the Employment Appeal Tribunal ("EAT").

What did the EAT decide?

The EAT considered that the ET had erred in its decision making, including its focus on when the Respondent became aware that the Claimant's manager had cancer. It was important to distinguish between a person having cancer and having been diagnosed as having cancer. The EAT clarified that it is the former that is protected by paragraph 6 of the EqA 2010. The EAT states "If a disability is undiagnosed and unsuspected by the employer it will not be possible for the employer to have discriminated because of it. On the other hand, if a person does have cancer, and the employer believes that to be the case, disability and knowledge can be established before a medical diagnosis has been obtained."

The EAT allowed the Claimant’s appeal and remitted the case back to a fresh ET to consider the date upon which the employer had actual or deemed knowledge of the manager's disability and whether the Claimant was discriminated against because of it.

What can employers take from this?

The judgment suggests that the statutory guidance on the EqA 2010, which says a person is ‘protected by the Act effectively from the point of diagnosis’, is misleading. Employers should be aware that a formal diagnosis is not required for an employee to be deemed disabled. What is relevant is whether the employer knew, or should have known, that the individual had a disability.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.