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  • Employers should note that an employee may still have cancer for the purposes of protection against disability discrimination even though the medical diagnosis is described as 'pre-cancer' or "in situ" non-invasive cancer. In Lofty v Harris (t/a First Café) the claimant was held to have a deemed disability as she had cancer cells in the top layer of her skin, notwithstanding that they had been described as "pre-cancerous". Employers should ensure they obtain a clear understanding of the medical evidence when determining whether an employee is disabled, bearing in mind that 'pre-cancerous' calls might mean something different depending on where the cells are found.
  • The Court of Appeal has confirmed that an employer can give significant weight to the opinion of its occupational health adviser that an employee is not disabled, provided the opinion is informed and reasoned and that the employer does not accept it uncritically. In determining whether an employee is disabled and therefore requires reasonable adjustments, employers should meet with the employee, take into account any GP evidence, and seek to clarify any inadequacies in the initial occupational health report. An employer who has taken reasonable steps to ascertain whether an employee is disabled will not be fixed with constructive knowledge of disability simply because it could have done more. (Donelien v Liberata UK Ltd).
  • A clear expectation or pressure to work long hours could be potentially discriminatory, even where there is no formal 'requirement'. Employers must bear in mind their duty to make reasonable adjustments where disabled employees could be disadvantaged by a long-hours environment. The Court of Appeal in United First Partners Research v Carreras has agreed with the EAT ruling that a pattern of repeated requests to work longer hours created an expectation and a pressure on the employee to agree. This amounted to a "provision, criterion or practice" which potentially discriminated against the claimant because of his disability. Particular care may be needed where a new extended hours requirement is introduced for existing employees, or where there is a long hours culture which only becomes an issue for a particular employee after they suffer an illness or injury (qualifying as a disability). In the latter case, management's willingness to accept shorter hours immediately after the employee's return to work may be short-lived, leading to pressure on the employee to return to their previous long hours.

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Samantha Brown

Managing Partner of EPI (West), London

Samantha Brown
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Steve Bell

Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne

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Emma Rohsler

Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris

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Andrew Taggart

Partner, London

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Fatim Jumabhoy

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Barbara Roth

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