Recruiter with breast cancer told she was lucky to get ‘free NHS boob job’ by manager was harassed, tribunal rules

Judge finds comments were not intentionally malicious but lacked ‘insight and sensitivity’ and created ‘offensive environment’

A recruitment worker with breast cancer who was told by her boss she was taking the diagnosis “too seriously” and that “it's not like you’re going to die” was a victim of harassment related to disability, a tribunal has ruled.

The video tribunal ruled that Aggie Kownacka, who worked for Textbook Teachers as a recruitment account manager from 12 June 2017 until her resignation on 23 December 2018, was subjected to harassment from her managing director Sharon Paul, who allegedly joked she was “lucky to have a free boob job off the NHS” and suggested she would have a “high libido” after hormone treatments for breast cancer.

Further claims of direct disability discrimination and failure to make reasonable adjustments were dismissed.

The tribunal heard that Kownacka, who worked out of the company’s office in Oakham, Rutland, was “good at her job and a valued member of the team”.

In May 2018, she discovered a lump in her breast and was diagnosed with breast cancer which required surgery. On 5 June, Kownacka and managing director Sharon Paul agreed that she would be off work for two weeks following her operation and that she would be given full pay during her sickness absence: more than the five days set out in her company contract.

However, the next day, branch manager Kirsty Dunleavy allegedly overheard Kownacka tell a client on the telephone that she would not be returning to work until September 2018 which caused concern because this was closer to 12 weeks’ absence rather than the agreed two weeks. Dunleavy called Kownacka after work and asked her to provide paperwork relating to the 12 weeks’ absence she had been overheard discussing.

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Kownacka then called Paul, who allegedly said to her: “It’s not as if you’re going to die” and asked why she needed that much time off as it was “only the early stages of cancer”.

The tribunal heard that Paul also told her to “focus on filling jobs for September” and suggested she was taking her condition “too seriously”, adding it was “no big deal”.

On her last working day before her operation, which was on 12 June, Kownacka had a “positive” meeting with Dunleavy and Paul about a phased return to work and it was agreed that she would have four weeks off.

However, on 18 June, Kownacka called Paul to discuss how the operation went and claimed that Paul asked if she was ready to come back as she [Paul] was having to “come in and fill in for you”.

Kownacka also alleged that Paul said she was “lucky to have a free boob job off the NHS”, asked if she was happy with her “new breast size” and if she was going to have “another free boob job” so the other matched.

The tribunal said that after a meeting at her home on 26 June with Paul about when she would return to work, Kownacka sought advice from cancer charity Macmillan on managing sickness absence. She also received legal advice from an independent source before deciding to take her employer to a tribunal.

Following an appointment with her clinicians, Kownacka texted Paul to tell her she would return to work on 16 July. The tribunal noted that according to her notes from her call with Macmillan, she was due to have radiotherapy every day for four weeks in August but was “hoping to go back on Monday for two weeks before treatment starts”. The notes also say that she was worried about managers being “unsupportive”.

On 13 July, Paul called Kownacka to arrange a school visit on her first day back at work. The tribunal heard that Paul said “words to the effect” that Kownacka would have a high libido because of the hormone treatment she received, and that Paul had a “treat for her return to work” in the form of a “male Polish PE teacher” working at the school they were due to visit.

On 16 July, Kownacka’s first day back, Paul called in sick and was unable to drive Kownacka to the visit. Dunleavy agreed to do the school visit if Kownacka attended the office. However, Kownacka was instead signed off sick by her GP and did not return to work.

Following more legal advice, she raised a grievance on the same day alleging direct discrimination and harassment on the grounds of sex, nationality and disability, and failure to make reasonable adjustments.

Judge Brewer said that while Paul did not intend to be offensive, the claim for harassment related to disability was upheld as she showed a “lack of insight, sensitivity and empathy”, which had the effect of violating Kownacka’s dignity and “creating an offensive environment”.

Brewer also highlighted that Paul had previously supported her brother through cancer, but that every patient deals with their diagnosis differently. “We have no doubt that every cancer patient’s experience is personal to them and it cannot be presumed that if one person deals with the diagnosis by stoicism and does not mind others making light of the disease, others with the same diagnosis will feel the same,” said Brewer.

Richard Port, partner at Boardside Employment Law said the case underscores the need for employers to ensure managers have had proper bullying and anti-harassment training. "All associated training should be relevant and comprehensive and should be effectively applied, to ensure that the work environment for everyone is free from harassment and that there is a culture of respect for all," said Port.

Textbook Teachers has been contacted for a comment. Kownacka could not be reached.