LOVE THE HAIR! coupled with loud sniggering could lead to a punch up. Let's just .... were cancer cells in the top layer
ENCOURAGING SIGNS Perky placards to please you
THE IMPORTANCE OF MEDICAL EVIDENCE Where does a precancerous state leave employers?
CHANGE & CHANGEABILITY How do you stay up-to-date with the ever evolving law?
Your weekly bulletin of wit & wonder in the world of…
Wg Employment Issue 597/April 2018 Can I just tell you how fabulous you are? Seriously. You’re great. You’re strong and creative, you work hard and you have excellent taste in reading matter (obviously). Now, if you’re British you’re probably in a whirl of contradictions right now – because we all like a compliment but, in the UK, we also DON’T like a compliment. Insults are much more our thing. But in America, in front of the Soldiers and Sailors monument on Nashua’s Main Street, Greg Amaral and Wendell Walker are holding up signs. And they’re NICE signs. According to Yahoo! News, the two have been going out on weekends with signs which read: YOU ARE AN AMAZING HUMAN – NEVER GIVE UP AND YOU CAN DO ANYTHING BECAUSE YOU’RE AWESOME! And the people of Nashua appreciate this encouragement. Mayor Jon Donchess, says they’re helping Nashua to become a ‘city of kindness’. Maybe they have something. We should probably all be doing this on our weekend. We should develop an app which talks to a message scroller on our T-shirts and, as we walk the dog or go out on a bike, it would roll out inspiring words as we approach others… That’s a great hat you’re wearing! Love the hair! Very impressive running! Only, the problem with that is how soon it would slide. Seriously? You thought those leggings were a good idea? Eeeew. Think you need a shower, pal. Stop laughing like that! So there would have to be a finite selection of compliments only. And even then it could be tricky. LOVE THE HAIR! coupled with loud sniggering could lead to a punch up. Let’s just leave it to the sincere Americans, shall we?
Skin deep issues And speaking of signs brings me to the more worrying indications of a skin blemish and the case of Lofty v Hamis. The Equality Act 2010 provides protection against discrimination which relates to certain listed characteristics which people may possess, including disability. Section 6 of the Act defines disability as any physical or mental impairment which has a substantial and a long-term adverse effect on a person's ability to carry out normal day-to-day activities. People with particular illnesses are deemed disabled under Schedule 1 of the Act. Cancer, HIV and multiple sclerosis are considered to be a disability. Mrs Lofty was a café assistant at Hamis trading as first café who was advised by a dermatologist that the biopsy result of a blemish on her cheek was consistent with lentigo maligna: ‘a precancerous lesion which could result in lesion malignant melanoma (skin cancer)’. She had several operations to remove the lesion from her face and had skin grafts. After her treatment she was informed that she was clear of any possible cancer. However she was signed off work, during and after the surgery, from 17 August 2015 and did not return to work. Due to problems with her attendance and arranging meetings to discuss the situation, the first café decided to dismiss the Mrs Lofty with effect from 17 December 2015.
EVENT SEASON Mrs Lofty claimed unfair dismissal believing that her dismissal2018 was unlawful disability discrimination. The Employment Tribunal (ET) upheld the unfair dismissal complaint, on the basis that the dismissal had been procedurally unfair. In proceedings for alleged disability discrimination, it concluded that she did not have cancer within the meaning of the Equality Act 2010. Accordingly, she did not benefit from the Act’s provisions SEXUAL HARASSMENT IN THE WORKPLACE MENTAL HEALTH CHECK that deem cancerThursday to be a disability. 7th June Tuesday 10th July PULLING A SICKIE Wednesday 5th September
PRACTICE MAKES PERFECT Wednesday 17th October
12 DAYS OF CHRISTMAS Thursday 22nd November
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unfair dismissal complaint, on the basis that the dismissal had been procedurally unfair. In proceedings for alleged disability discrimination, it concluded that she did not have cancer within the meaning of the Equality Act 2010. Accordingly, she did not benefit from the Act’s provisions that deem cancer to be a disability. The ET appeared to have had particular regard to those parts of the medical evidence using the term "precancerous" and that the condition was not yet invasive. The Employment Appeal Tribunal (EAT) disagreed. The evidence before the ET was that Mrs Lofty had an in situ melanoma. That meant there were cancer cells in the top layer of her skin. The evidence explained that "pre-cancer" may be regarded as medical shorthand for a particular stage in the development of cancer; it does not mean there is no cancer for the purposes of the Equality Act 2010. Her diagnosis was sufficient to demonstrate that she was disabled and entitled to protection. The EAT noted evidence that Parliament has chosen not to draw a distinction between invasive and other forms of cancer (such as invasive or not).
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Although the EAT found Mrs Lofty disabled under the Equality Act 2010, they also commented that if the ‘precancerous’ cells were found elsewhere it may have led to a different outcome, and in cases of disability discrimination medical evidence should be carefully considered. It is important for employers to note that it is not sufficient that a claimant might develop a condition in the future; they must actually have one of those conditions. Further, conditions cannot be disregarded because they have not reached a particular stage.
Ch-ch-ch-changes Everyone goes through changes, as Ozzy and Kelly Osbourne once movingly explained to us in song. Bowie did a train impression about it too (see title above). What is it about employment law? It keeps changing. Our Peace of Mind team has been frenziedly updating POM members on a host of issues this spring, including:
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changes to tribunal compensation limits
changes to family leave pay
changes to sick pay
changes to the National Minimum Wage
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Contact the team Sarah Whitemore (Partner) – 02380 717462 Howard Robson (Partner) – 02380 717718 Lisa Joyce (Associate) – 02380 717447 Emma Kemp (Associate) – 02380 717486 Natalie Rawson (Solicitor) – 02380 717403 DISCLAIMER While every effort is made to ensure that the contents of these diaries are up-to-date and accurate, no warranty is given to that effect and Warnergoodman does not assume responsibility for their accuracy and correctness. The diaries are provided free of charge and for information purposes only. Readers are warned that the diaries are no substitute for legal advice given after consideration of all material facts and circumstances by an experienced employment lawyer. Therefore, reliance should not be placed upon the legal points explained in these diaries or the commentary upon them.
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