Monday 23 September 2019

'Oh, you're the one with the strawberry birthmark' - patient brings compo case after claiming health worker's comment was 'discriminatory'

The Workplace Relations Commission dismissed the claim
The Workplace Relations Commission dismissed the claim

Gordon Deegan

A patient has failed in her compensation bid over her claim that an operating theatre staff member said “oh you’re the one with the strawberry naevus (birthmark)” as she was about to go under the knife.

In the incident, the woman told the Workplace Relations Commission (WRC) that she attended at a hospital here on November 16th last for an operation on her foot when the remark was allegedly made about her facial birthmark.

In her discrimination claim at the WRC, the woman said that while in the operating theatre she heard operating theatre personnel say to her “oh you’re the one with the strawberry naevus (birthmark), and we were just reading your letter” to a consultant surgeon.

In her claim under the Equal Status Act, the woman  claimed she was treated in a discriminatory manner by the hospital in question in their treatment of her when she attended the hospital for a procedure on her foot.

The woman told the WRC that reference to her facial birthmark "was inappropriate and discriminatory in that it referenced her appearance,  and was prohibited conduct under the terms of the Equal Status Act, 2000".

The patient said that she corresponded with the hospital in the aftermath of the incident, asking how this could happen and sought face-to-face meetings with the staff in attendance on the day concerned so that she could receive apologies and commitments that such behaviour would not be repeated.

The patient said that she was advised that her complaint would be investigated but that it would take some time.

The woman said that she submitted her complaint by email to the Patient Experience Office on the 3rd January 2019 and when she didn’t receive a reply, she gave notice to the hospital through an ES1 form that would make a complaint under the Equal Status Act to the WRC on January 29th 2019.

The woman stated that she is seeking redress by way of apologies from the hospital and compensation for the discrimination and victimisation suffered.

The WRC held an oral hearing into the case and in response, the hospital stated that the allegations of discrimination have been made without corroborating evidence and following the hospital’s investigation there is a clear conflict with the evidence from the complainant.

The hospital rejected the complaint of discrimination by the patient and said that no evidence has been presented in favour of the complaint by the complainant or any other witness.

The hospital also stated that the complaint lodged was out of time as the ES1 notification should be lodged within two months of any alleged prohibited conduct.

In response, WRC Adjudication Officer, David Mullis dismissed the case on a technical point without making a ruling on the merits of the claim.

Mr Mullis said that he didn’t have the jurisdiction to adjudicate on the case as the time limit in the Equal Status Act, 2000 was breached by the complainant in the complaint process and the explanations offered for this did not overcome the time breach.

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