Cancer survivor wins €5,000 after HSE ordered her back to work in kitchen during pandemic

A cancer survivor who was ordered to work full-time in a health service kitchen when the Covid-19 pandemic struck, despite a promise to assign her office work because of chemotherapy-induced nerve damage, has won €5,000 for disability discrimination.

In a complaint under the Employment Equality Act 1998 against the Health Service Executive, Co Galway woman Deirdre O’Grady told the Workplace Relations Commission that she spent 18 months between 2016 and 2018 being treated for cancer and received chemotherapy – leaving her with nerve damage, she told the WRC.

She had been a health service chef since 2002 but even before her illness had done a mix of office work and kitchen work, the tribunal was told.

When she went back to work, her employer agreed to let her work full-time in an office in Tuam, Co Galway, a 7km drive from her home, working on rostering, risk assessments, food allergy management and food hygiene procedures, the tribunal was told.

However, after the Covid-19 pandemic reached Ireland in 2020, Ms O’Grady was redeployed with three other staff to Ballinasloe, Co Galway from 1 July that year, assigned to work full-time hours in the kitchen “contrary to the medical advice” she had, her trade union Siptu said in a legal submission.

The kitchen work required her to stand all day and wear steel-capped safety shoes, the tribunal heard.

All this, in combination with a longer drive to her new work site, caused Ms O’Grady “significant physical pain, discomfort and lack of sleep due to spasms”, the union submitted.

An occupational health report from November 2020 submitted to the tribunal stated that the worker had left “no stone unturned in trying to improve her symptoms” but that she still had trouble walking.

“[She] tells me that most of the time she cannot wear shoes due to her symptoms. This will need to be taken into account in finding a suitable and safe role for Deirdre,” the occupational health doctor wrote.

Ms O’Grady’s evidence was that although she had been put in a colder area of the kitchen making salads, sandwiches and desserts, that still required to prepare hot custard on occasion.

The worker said she was not taking any extra breaks as she was working with a team and it would not be in her “nature” to take extra breaks – and that the would not help matters anyway.

The tribunal was told that while it was hearing her complaint, Ms O’Grady’s complaint had been moved back to Tuam.

The HSE’s position was that it “adhered to all medical recommendations” and that occupational health reports showed Ms O’Grady was “fit to work” on the duties assigned to her.

In her decision, adjudicating officer Louise Boyle wrote that because the worker was “not mostly working with hot food” the HSE “appeared to make assumptions that this of itself was sufficient to accommodate [her]”.

She said Ms O’Grady’s testimony on working conditions which had been advised against by occupational health was “credible” – while her manager had “submitted details of seven meetings that either did not take place or took place on other dates than he had provided”.

She found that the HSE made “some efforts” to give Ms O’Grady reasonable accommodation, but that it had not met its legal obligations, and awarded the worker €5,000 for disability discrimination.

Ms O’Grady had also told the tribunal that she had medical advice to “avoid small country roads” and use motorways when she could to minimise her use of the clutch and brake – and that because of this she was travelling 16km more on her commute to Ballinasloe, as well as paying the tolls.

Mileage was being paid by the HSE to compensate staff for relocating, the tribunal head – but the longer distance had cost Ms O’Grady €5,584.35 between 1 July 2020 and 22 August 2022, her union submitted.

However, Ms Boyle found there was no discrimination in this regard, deciding it would be an “unreasonable burden” on the employer to be expected to compensate the worker for the extra mileage and rejected the worker’s discrimination claim in that respect.

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