The complainant in this case was diagnosed with breast cancer for the second time in 2002. She developed lymphoedema affecting both her arms following surgical intervention which remained as a consequence. She continued in her role in Unit A until she was informed she was being moved in September 2009. The complainant believed that she was being moved because she had made a verbal complaint of bullying against the Assistant Director of Nursing.

The Equality Officer considered that during the intervening years the complainant was “provided with appropriate measures and that moving her from that accommodation was an ill-considered and an ill-thought out solution to an interpersonal staffing issue which existed there between her and the Assistant Director of Nursing”. The Equality Officer also found it “highly significant that the complainant was moved out of a post which suited her needs in relation to her disability despite having medical evidence from their own Occupational Health Consultant to the contrary”.

Taking account of the now seminal case Humphries v Westwood Fitness Club, EED037, the Equality Officer stated: “There was no joined up thinking between the Occupational Health Division and the Employee Relations Division and in fact the opinions of the respondent’s own Occupational Health Consultant and the complainant’s Oncologist were disregarded”. This was found to constitute a prima facie case of discrimination on the disability ground which was not rebutted by the respondent. 

The Equality Officer found the testimony of the Employee Relations Manager contemptuous, disdainful and very defensive including his response: “I don’t want to know anything about a person’s medical condition, it's not my business it is for occupational health to decide.” The Equality Officer went on to uphold discriminatory constructive dismissal. The complainant was awarded €85,000 equating to approximately 2 years' salary.

Why is this case of interest?

* Neither the complainant’s nor the employer’s medical advice was taken into account. DEC-E2013-080 was another example this year where the HSE ignored agreed medical findings or advice. The award in that case was €70,000 and in this one €85,000. 

* In terms of what might constitute disproportionate burden, a large organisation such as the HSE must take account of its scale and financial resources in accordance with s.16(3)(c)(ii). 
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