Complainant

Respondent

Anonymised Parties

An employee

A Service Station

Representatives

Barry Crushell, Crushell & Co Solicitors

Owen Keaney, B.L. instructed by  Sherwin O'Riordan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044240-001

20/05/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Members of the public were facilitated in attendance at the hearing, including a number of journalists.

At the start of the first hearing, the complainant was asked what form of address they wished to be used and in response indicated that their first name would be acceptable.  However, it was noted to them that the hearing was formal, and all parties would be addressed in a formal fashion.  The complainant was then asked to consider what form of formal address would be acceptable.  They were unable to indicate what formal title/address they wanted to use.

The complainant only provided submissions on the night before the first day of hearing.  The respondent suggested that they would be prejudiced by proceeding with the hearing on that date as the complainant’s submissions contained a substantial amount of previously undisclosed allegations against several staff members.  In light of the number of allegations put forward by the complainant at such short notice, the Adjudication Officer noted that this practice of submitting such late submissions amounted tremendous waste of the WRC and the parties time but noted that, in such circumstances, he was left with no alternative but to grant the request for an adjournment.  However, the parties were given detailed direction regarding the timeline for submission of responding submissions and witness lists in advance of the reconvened hearing.

At the start of the reconvened hearing, the respondent’s representative sought a direction from the Adjudication Officer seeking to preserve the anonymity of its witnesses.  Although it was not seeking that the hearing be held in private, given the nature of some of the allegations made, which it refuted, and the nature of the case which centred on a non-binary transgender individual, a number of its witness had conveyed outright fear of being identified, given the prevailing social media climate and how that might impact upon them.

The respondent’s representative suggested that an Adjudication Officer can invoke a body of lesser measures short of holding a hearing in private where ‘special circumstances’ exist.  It was noted that other AO colleagues have made directions in relation to such matters.  The complainant’s representative suggested that involving special reasons should be used sparingly and noted that the respondent should have sought to invoke these matters before the reconvened hearing.  The complainant’s representative objected to any further delay in progressing the complaint.

The respondent’s representative noted that there is an obligation on the complainant to substantiate any allegations that they were putting forward and that none of the allegations now before the WRC were put forward by the complainant while an employee.  The representative noted that there may be reputational consequences to the various witnesses that he was obliged to call to address the allegations put forward by the complainant.  It was noted that the default position adopted by the WRC was to hear cases in public and he did not wish to challenge that position but sought a fair compromise to safeguard the anonymity of witnesses. 

The Adjudication Officer noted that it is his usual procedure not to identify individual witness who attend at hearings in a decision, but rather to identify them by their role or the use of a single letter.  The matter was adjourned to facilitate submissions on the issue of using pseudonyms during the hearing.

Although submissions were received on this matter, the journalist in attendance on the third day of hearings indicated that he was aware of the directions given by other Adjudication Officers in relation to naming or anonymising witnesses and had no difficulty in doing so in relation to this case. In the circumstances The Adjudication Officer, did not make a specific direction but rather suggested that the witnesses would be referred to by a letter of the alphabet through the hearings where possible.  Neither party objected to this suggestion, and accordingly the hearing proceeded.  It took a further hearing to elicit all the evidence of the witnesses.

The complainant and three witnesses for the respondent gave their evidence under affirmation.  The parties were provided with the opportunity to cross examine witnesses.

After lengthy consideration of all submissions provided by the parties, the evidence provided by the complainant and witnesses, I am satisfied that the level of detail provided by the parties regarding the complainant and the transition process, of the delay in raising aspects of this complaint in submissions particularly the new allegations raised at the hearings, together with the evidence provided by those witnesses in attendance at the hearing is such as to warrant anonymisation of this decision.  I am satisfied that the medical/personal details of the complainant warrant anonymisation while at the same time I am satisfied that raising allegations in 11th hour submissions against various persons, some of whom are no longer in employment with the respondent also warrant anonymisation.  I consider this to be the fairest course of action to all concerned.

The complainant commenced employment with the respondent on 25 April 2019 as a supervisor. The complainant submitted that they did not hide their gender identity in the workplace and as a result was subjected to prolonged transphobic discrimination at the hands of their employer.  The complainant contends that they legally changed name on 18 December 2019. However, this name change was not registered on the employer’s system until 27 February 2020.

The complainant submitted that they had a long history of gender incongruence and contended that they were outed in work by a colleague.  It was noted that they had no intention of coming out in work for fear of the difficulties which can arise from doing so.  After this decision was taken out of the complainant’s hands, they decided to inform their colleagues that they wished to be address using they/them pronouns.  While two of the complainant’s colleagues were supportive of the complainant’s coming out, the rest were not. Other colleagues refused to utilise they/them pronouns for the complainant and instead persisted in using she/her pronouns even though the complainant had asked them not to do so. The excuse given by these colleagues was that they didn’t understand.

The complainant went on sick leave for two weeks due to an allergic reaction suffered in work. During the complainant’s absence, a new employee had joined the team. Upon return to work, the complainant was made aware by another colleague, that personal details regarding the complainant’s name change and gender identity had been given to this new employee by the same employee who had outed them.

The complainant confronted their colleague about this, and he confirmed to them that he had in fact shared their personal details with the new employee. The complainant was very distressed about this not only because it was their personal information to share, but also because they felt that this put them in danger due to the discrimination and bullying that transgender people frequently face.

The complainant decided to report this matter to the site manager who then organised a meeting with the two parties. At this meeting, the complainant explained their distress and the colleague apologised. The complainant was told that a note of this matter would be made on the colleague’s record.

The complainant submitted that sometime after this, they were due to take leave from work to get top surgery (breast removal). Before their departure, a co-worker asked the complainant explicit questions and made explicit hand gestures mimicking a male phallus.

The complainant submitted that another co-worker, persistently referred to them by the nickname ‘Margarine’. He continued to do this despite the complainant making it clear that they did not like it. The complainant felt as though their colleague was mocking their transition and was specifically targeting them because he did not have a nickname for anyone else.

The complainant submitted that they constantly had to correct their co-workers about which pronouns they wished to go by. The complainant decided to raise the issue with the operations manager who told the complainant that she would report the issue to head office. The complainant felt as though the operations manager had been dismissive and to their knowledge never actually made this report to head office.

The complainant submitted that on 12 April 2021, there was a routine staff meeting. Present at this meeting was a number of colleagues including the franchise manager, site manager, and supervisors. The complainant submitted that at this meeting, the complainant raised the issue of how they had been outed at work and how their personal information had been the subject of workplace gossip. The complainant informed those present of the effect that this was having on them and also the effect it was having on other colleagues. The complainant submitted that had become aware that other members of staff were scared to come out because they had seen how the complainant had been treated.

The complainant submitted that they had also raised the issues of the nickname and the use of incorrect pronouns. The complainant submitted that they became very distressed and upset at this meeting as they felt as though their treatment was not being taken seriously.  In response, the site manager commented that “I just don’t get it”. The complainant submitted that they informed the manager that she did not have to understand the intricacies of their gender, she just had to use the correct pronouns. The manager then asked the complainant if they could “correct me when I make a mistake”. In response to this, it was pointed out that it was not the complainant’s job to monitor other people’s language at work and that the manager should be capable of doing that herself.

The complainant submitted that after the meeting, that manager continued to use the incorrect pronouns for the complainant. The complainant brought this to the attention of the franchise manager and asked him to have a meeting with the site manager to again outline the seriousness of the issue.  The complainant submitted that at this meeting, the franchise manager himself constantly misgendered the complainant. He also stated that the complainant’s gender was “her choice” and had to be respected and referred to the complainant’s gender as their “orientation”. He also stated that he “wouldn’t mind” if his own kids were gay.  The complainant submitted that they were disheartened by this as the franchise manager appeared unable to grasp that this issue was not about sexuality. It was about gender.

The complainant raised the irony of the franchise manager telling people to use their correct pronouns when he himself seemed unable to do so. The complainant offered to get him resources to help him understand the issues. The complainant submitted that the franchise manager refused and again stated that he wouldn’t mind if his own children were gay. The complainant submitted that for some reason, the franchise manager also felt the need to note that he had had “an epiphany” about the difficulties that disabled people face when searching for employment. The complainant submitted that one would hope that franchise manager was not drawing similarities between the complainant’s gender identity and those with disabilities.

The complainant submitted that during their employment, the franchise manager made numerous other comments which made them uncomfortable. These included making comments and jokes about sex swings, making comments about the complainant being “wet” when she came in from the rain while making lewd facial expressions, saying someone must have sexually relieved themselves in the fridge when the complainant informed him that someone had spilled mayonnaise everywhere and telling the complainant that the individual who had twice smacked her inappropriately on her behind was simply “of an older generation”.

The complainant submitted that they felt the need to visit their GP as their mental health was suffering as a result of their treatment in the workplace. The complainant had begun to find work unbearable and often cried both on the way to work and in the work toilets. While waiting for an appointment with their GP, the complainant made the decision not to return to work in order to protect their mental health.

The complainant submitted that on 21 April 2021 they contacted the area manager to inform him of the issues.  The complainant met with the area manager on 23 April 2021 to discuss the issues. The complainant submitted that the area manager excused the behaviour of the franchise manager by commenting that “they/them pronouns are new”, that he had been raised in the country and referred to his age. The area manager stated that he was unsure if this was a legal matter and would be slow to fire someone for using incorrect pronouns as that may lead to a claim of unfair dismissal. He said that the matter was “new to the company but that he would have a meeting with all staff to explain the issues to them”.

The complainant submitted that at this subsequent staff meeting, the area manager informed staff that he would be monitoring the situation and that staff members were required to use the correct pronouns to address the complainant. However, he also stated that the complainant needed to be understanding as it was going to take time for people to grasp the concept. Despite telling the complainant that he would be in touch following this meeting, the area manager never contacted them.

The complainant submitted that on 6 May 2021, on advice from their GP and therapist, they handed in their resignation letter as they were no longer able to sustain working in such an environment where nothing was being done despite numerous attempts on their behalf.

The complainant submitted that the Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’ Section 8(2) provides particulars, including the duty at subsection (e) to provide ‘systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health’.

The complainant further submitted that Section 8(2)(i) refers to the general principles of prevention in Schedule 3 and provides that ‘where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees’.

The complainant noted that Schedule 3 of the Act sets out general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risks … 4. The adaption of work to the individual … 5. The adaption of the place of work to technical progress … 7. The giving of priority to collective measures over individual protective measures.’

The complainant noted that Section 13 imposes duties on the employee, including to comply with statutory provisions and to take reasonable care to protect their safety, as well as to cooperate with the employer.  The complainant referred to the High Court case of Catherine Hurley –v- An Post [2017] IEHC 568, concerning a complaint taken under the Safety, Health and Welfare at Work, 2005. In that case there was workplace bullying which was not addressed. The decision stated: “The Court is satisfied that there is a common law duty on an employer to take all reasonable precautions for the safety of its employees and not to expose them to a reasonably foreseeable risk of injury.” The complainant further submitted that the High Court found that the defendant was in breach of its common law duty of care to the plaintiff as an employee under Section 8 of the 2005 Act and exposed the plaintiff to the damage and injury suffered as a result.

In this respect the complainant contends that the respondent was on notice of the incidents of harassment being suffered by the complainant but took no adequate corrective action.

The complainant submitted that Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the complainant themselves must establish facts which show that they suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the respondent to rebut any inference of discrimination that has been raised. The inference must be such that the complainant has established a prima facie case that he has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds. in this instance the complainant contends that they were discriminated against on the grounds of their gender and that they were not provided with a safe place of work by the respondent.

The complainant submitted that the Labour Court and WRC’s approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201): “..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The complainant noted that it intends to rely on the existing case law, in addition to a number of precedent cases, as they relate to gender transition:

Hannon v First Direct Logistics Ltd [DEC S2011-066]. This case established that ‘transgender’ is covered by the gender ground under the Employment Equality Acts 1998-2015. In this case, the Complainant claimed to have been constructively dismissed when she had commenced her transition. The Equality Tribunal found in her favour.  The Equality Officer stated that “it is well established in law that the gender ground protects transgender persons from sex discrimination, that is, discrimination arising essentially if not exclusively on the sex of the person concerned”. The Equality Officer noted that this approach had been approved by the European Court of Justice in P v S and Cornwall County Council (CJEU Case C-13/94) [1996]. In that case, the Equality Officer stated that transsexualism is a recognised medical condition which is treated by a combination of hormone therapy, surgery and getting to live “a real-life experience” in their chosen gender. The Equality Officer made it very clear that this “real life experience” includes the workplace.

The complainant submitted that it contended that on this basis, they were discriminated against on the grounds of gender within the meaning of the Employment Equality Acts 1998-2015.

The complainant submitted noted that in the above case, transsexualism is a recognised medical condition which is “treated by a combination of hormone therapy, surgery and getting to live “a real-life experience (which includes the workplace)”. The complainant has undertaken hormone therapy and surgery and noted that all they want is to live a real-life experience in their chosen gender.

The complainant contends that the respondent did not in fact allow them to have that experience. On the contrary, they discriminated against them on the grounds of their gender and made them feel uncomfortable and unsafe in that gender every time they entered their workplace.

The complainant submitted that they were constructively dismissed when they commenced their transition.

The complainant submitted that the Adjudicator in the case of Deirdre O’Byrne v AIB (DEC-S2013-015) cited Hannon with approval. It also made reference to the CJEU in C-423/04 Sarah Margaret Richards v Secretary of State for Work and Pensions [2006] where it was stated that:

“The scope of Directive 79/7 cannot thus be confined simply to discriminations based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of that directive is also such as to apply to discrimination arising from the gender reassignment of the person concerned.”

The complainant submitted that the CJEU added that “cases involving discrimination against persons on grounds of gender reassignment must be analysed based on a comparison not between men and women, but rather between the transsexual and a person of the same sex whose gender is not the result of gender reassignment.”

The complainant submitted that the case of McLoughlin v Paula Smith Charlies Barbers (ADJ-00011948) involved transgender discrimination. It was submitted that the court again quoted the CJEU’s decision in P v S and Cornwall County Council. The CJEU had stated that “to tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the freedom and dignity to which he or she is entitled, and which the court has a duty to safeguard”.

The complainant submitted that the Adjudication Officer in this case stated that “the Complainant was treated differently, because he was transgender… this amounts to discrimination on the grounds of gender”.

The complainant submitted that on this basis, it is contended that the complainant was treated differently because they are transgender and that this amounts to discrimination on the grounds of gender. As said by the ECJ to permit this discrimination would amount to a failure to respect the freedom and dignity of the complainant.

The case of An Employee v A Hotel (EE/2014/220) was a case about discrimination on the grounds of sexual orientation. The complainant submitted that the Adjudicator Officer quoted with approval a passage from Judy Walsh (2012) summarising the case law to date. Walsh states that “the Respondent need not to have been motivated by prejudice or have intended to treat someone less favourably because of their gender, ethnicity and so on. Furthermore, discrimination need not be the sole or even the principal factor behind the conduct complained of. It is enough that it is of significant influence”.

The complainant pointed out that on this basis, even if the respondent was not motivated by prejudice and they did not intend to treat the complainant differently because of their gender reassignment, the simple fact is that they did. It was submitted that intention or motive does not have to be present in order for the conduct in question to amount to discrimination.

The complainant submitted that it would argue that while the respondent’s discrimination against the complainant may not have been the sole factor behind the conduct complained of it definitely was a “significant influence”. This was shown by their repeated failure to use the correct pronouns or take note of how their failure to do so was affecting the complainant’s wellbeing.

The complainant noted the case of Rose Taylor –v- Jaguar Land Rover Ltd (Case No 1304471/2018) a 2018 decision from a similar tribunal in the UK.   It noted that in this case an employee transitioned. After doing so, she was subjected to insults and abusive jokes at work. She was also not given managerial support. The complainant made claims of victimisation, harassment, direct discrimination and constructive dismissal. The complainant was awarded £180,000 in compensation.

In summary the complainant submitted that after transitioning, they were constantly subjected to insults and abusive jokes by the respondent. This occurred even after the complainant asked them to stop and calmly explained the effect that these jokes were having on them.

The complainant submitted that it is perfectly understandable that having been misgendered and being the subject of constant abuse, they felt as though they had no choice but to resign. It was argued that the complainant was constructively dismissed.

Complainant evidence:

The complainant noted that before starting work they would have used they/them pronouns but were not comfortable coming out. They noted that they identify as non-binary, not necessarily male nor female. The complainant stated that they changed their name by deed poll and ultimately provided this to the employer in November 2019. The complainant noted that they had an expectation that once the employer was aware of the preferred pronouns, there was a very simple effort to comply. Some colleagues were already using the complainant's new name, but some were complaining that it would be difficult.

The complainant stated that it took the respondent until February 2020 to change their name on the pay slips.  The complainant stated that following the lockdown arising from COVID-19 they started working full time, once college had stopped.

The complainant stated that a colleague revealed their pronoun change without their permission. The complainant noted that a lot of trans people do not take the step of changing their pronouns in public.  The complainant stated that they brought it up at the time with their line manager who suggested that the matter was raised with the site manager. The complainant stated that the site manager brought in the specific colleague into the meeting but that this was not appropriate to do so. The colleague was told the gender and sexuality are two separate issues and was told not reveal the complainant’s pronoun change again, that it was not appropriate.  The complainant stated that the colleague shared their pronoun change again in the second half of August.

When asked about any other incidences of discrimination the complainant indicated that co-workers knew that the complainant was going for ‘top surgery’ and that they started the process in November 2020. The complainant noted that this information was shared with colleagues but noted that they took no formal complaint in relation to this matter.

The complainant also stated that they were being called names on a daily basis if not every second day from July to September 2020. The complainant noted that these names were used in an open plan kitchen and that co-workers and the manager would have been aware of the name calling.

The complainant also stated that there were two incidents of being slapped on the behind by a co-worker.

The complainant noted that in a routine staff meeting during April 2021 they had Raised the issue of correct pronoun usage. The complainant noted that people were providing excuses such as ‘they were older, or from the country, and didn't understand it’.  The complainant stated that the supervisor didn't understand that it was such a big issue, and that they shouldn't have to explain this to people and that it was a matter of respect.

The complainant stated that a colleague continued to misgender them, and they took her complaint to the site manager that one of their supervisors was continually refusing to use the correct pronouns. The complainant also noted that one colleague stated “if my kids were gay, I wouldn't have an issue with it” equating being transgender with being gay. The complainant stated that they clarified the difference between gender and sexuality and offered to provide pamphlets. The complainant noted that the colleague refused this offer noting that they were ‘not going to read a book’.

The complainant stated that they then got in touch with the supervisor’s line manager noting that there was an obvious ignorance on the part of colleagues who refused to use the correct pronouns. The complainant stated that they were not sure that this manager was aware of their transition journey but that day the complainant made reference to the effects on their mental health. The complainant noted that they dissociated from work and felt horrific. The complainant stated that they noted in their e-mail to this manager that they wanted to keep this issue ‘between ourselves’.

The complainant noted that they expected to have a meeting arising from the e-mail where they outlined how it made them feel and that that they wanted something to be done about it. It was indicated to the complainant that the manager would have to get in touch with HQ for advice. There was then another staff meeting to discuss pronouns and misgendering specifically. The site manager took charge, and they don't have the complainant was being treated. He noted it was the co-worker’s responsibility to treat people with respect. However, he noted that the complainant should also be understanding.

The complainant stated that they posed a question to the manager “what would happen if nothing changed?”. The manager noted that action taken could possibly be up to and including termination. The complainant agreed that it would be a serious step to take but didn't think that members of headquarters would be fired over a part-time student. The manager said he would follow things up.  The complainant noted that their line manager approached and indicated that he was sorry.

The complainant stated that they resigned on 6 May 2021. Following this they emailed to indicate that they wish that the complaint be dealt with on a formal fashion. The complainant stated that they didn't feel comfortable returning to a workplace where documentation was not in place.

In relation to the issue of a company handbook the complainant stated that they couldn't remember one, that it may have been online and that they sought one from the operations manager. The witness stated that the operations manager indicated that they didn't have one and didn't know where to get handbook.

When asked about discrimination and whether they ever invoked any of the language of discrimination, the complainant stated that yes misgendering somebody is discrimination.

The complainant clarified that they sent an e-mail on the 3rd of May and resigned on the 6th of May as they hadn't got a response. The complainant noted that the operations manager did not provide a grievance procedure to them.

It was put to the complainant by their representative that there were four separate meetings before resignation and that the respondent was actively taking measures, in response to this the complainant noted that holding a meeting is not addressing concerns.

As to the resignation after a short period of time, the complainant noted that they gave the respondent an appropriate time frame they gave them a month to deal with matters and that it was horrific to be treated this way every day for a month. The complainant noted that there were separate altercations on several occasions. The complainant noted that there were irreconcilable differences, they simply wanted them to use the appropriate pronouns, but they continued to use she/her pronouns.  The complainant referred to a bullying and harassment policy in the resignation letter. It was also noted that the respondent refused any offer made to educate them.

As to the impact on the complainant’s state of mind at the time, the complainant noted that they felt awful, felt disrespected and it was really disgusting to have to ask for basic respect. The complainant noted it was a different thing in private life but in work it's a different matter. The complainant noted that their Twitter and Instagram account were not provided to the respondent. The complainant noted that their supervisor said “you need to teach me and help me learn” like this is not my job. The complainant noted that they are not responsible for the learning of the supervisor and staff of the respondent.

The complainant noted that the issue of social media postings was never raised with the respondent.

Under cross examination the complainant confirmed being employed by the respondent as a supervisor but noted that they were not qualified. The complainant noted that there were three groups of workers: crew, supervisors, and management. The complainant confirmed that they had taken part in an induction day with the respondent and that there was online training and in-person training sessions.  There was also fire safety training provided in-person.  The complainant indicated the training possibly included an introduction to the handbook, but the complainant was unable to recall specifically.

It was put to the complainant that they can access online courses and emails in the office with their own specific login and username and password. When it was asked of the complainant if they were aware of the grievance policy, bullying and harassment/sexual harassment policy they indicated that they were. The complainant stated that perhaps they had accessed it when they started work. It was put to the complainant that they had accessed the company handbook on the Internet during their final week, but the complainant denied this.

It was put to the complainant that it had been suggested to them to follow the grievance procedure and the complainant accepted this. It was put to the complainant that the policy on harassment and bullying was set out, staff were encouraged to discuss issues with their line manager.  It was noted that there were two avenues available, a formal and an informal resolution mechanism. It was also put to the complainant that the handbook contained information regarding how to deal with sexual harassment complaints as well.

It was again put to the complainant that they had accessed the company handbook towards the end of their employment. It was put to them that they had last accessed the employee handbook on 5 May 2021, the day before resigning.  Therefore, they were aware of the existence of the handbook. The complainant accepted that they had probably accessed the handbook at that point. It was pointed out to the complainant that they had printed out a copy of the handbook before signing it but that the complainant had previously claimed that they didn't have access to the handbook or policies.  It was put to the complainant that they were being selective with the truth.

The complainant then confirmed that they just wanted colleagues use the correct pronouns and that this was the main disagreement. However, the complainant noted that as far as they knew they indicated other issues as well. It was put to the complainant that there was no reference to any allegations of harassment or sexual harassment in any emails to the respondent.  In response the complainant confirmed that they made no reference to sexual harassment previously because they did not think it was professionally correct to use graphic language. The complainant confirmed that they made a general complaint in April 2021 four weeks prior to resigning. They confirmed that there was no reference to sexual harassment made in the complaint and that it was about pronouns. It was put to the complainant that they had made a complaint regarding misgendering and the wrong pronoun usage and had referenced two occasions.

The complainant indicated that they had made a conscious decision not to include the more explicit information.

As regards the issue of sexual harassment it was put to the complainant that the first time any reference was made was when complaint was brought to the WRC. It was put to the complainant that a food operations manager who was lesbian had become a confidante to which the complainant agreed. It was noted that the complainant felt more comfortable talking to this manager. The complainant noted that they did not make a complaint to this manager, they confirmed they had met up but not to make a complaint, rather it was more of a general catch-up.

It was put to the complainant that the issue of pronoun usage was first raised with the manager on 12 April 2021. It was noted that the complainant had changed their name by deed poll, shared their trans status and sought a change on payslips. It was also noted that the complainant has indicated their trans status on social media. The complainant confirmed that their name change was common knowledge, in that it was on the name tag and on the roster under their new name, but the complainant noted that transgender was not necessarily identified in respect of the complainant.

It was put to the complainant that they actively wanted people to call them by their new name, the complainant confirmed that it was common knowledge but clarified that it was not their job to tell others how to refer to them. The complainant noted that early on they did not want to have a discussion regarding pronouns and the complainant indicated that at that stage they had not told anyone in work that they use that they/them pronouns.  Eventually the complainant mentioned to the line manager that the transition was happening.

The complainant indicated that a co-worker brought their trans status to the attention of colleagues.   The complainant indicated that they brought 2 complaints about this co-worker but that nothing was done about them. The respondent representative put it to the complainant that two interactions did not take place and that before the hearing there was only one incident noted to the employer but now, we are hearing about two meetings and that this was not credible.

The complainant noted that when the issue was raised about their supervisor misgendering them, the manager dealt with the matter and instructed the supervisor to use the correct pronouns, while using the incorrect pronouns himself. The complainant stated that it was more like indifference. The complainant indicated that the respondent’s management were uneducated and woefully unable to deal with the issues. The complainant noted that the management did not care enough to use the correct pronouns.

The complainant was asked whether they accepted that there is a period of adjustment for colleagues when a staff member transitions, to which the complainant noted “to a certain extent, yes”.

The complainant noted that in respect of the colleague that they had originally complained of, that colleague never referred to them by their chosen pronouns even after having been spoken to. It was put to the complainant that this was an extraordinary allegation.

(Cross examination continued on the next day of hearing.)

The complainant confirmed once again that the only reference in the e-mail sent to the respondent related to the issue of the use of pronouns, and there was no reference to sexual harassment.  The complainant confirmed that in sending an e-mail to the manager they insisted that the manager keep matters to himself and not escalate them. In response to the e-mail of complaint it was put to the complainant that they received a response the next day to arrange a meeting to discuss matters further on the following day, the complainant confirmed that this was the case. The respondent’s representative put it to her that she had noted that the respondent was “dismissive and with an attitude of indifference”.  It was put to the complainant that that is not borne out by the speed with which the respondent replied to the letter of complaint.

During the meeting on 23 April the complainant noted that the manager had stated that he “was not sure where the company stood on this or on the legality of matters.” The respondent confirmed that the meeting took an hour, and that the manager informed the complainant that they could choose to opt for a formal or an informal route. The complainant indicated that they wanted it dealt with formally.

The complainant indicated that the proposed solution was a meeting with all staff.  The complainant indicated that they were open-minded but had no hope that the meeting would be useful.

It was put to the complainant that the regional manager made a pretty significant personal statement indicating that if they became aware of any discriminatory action on the part of employees then it may result in dismissal of that employee.  It was put to the complainant that this was neither dismissive nor indifferent to the complaint raised.  It was put to the complainant that the respondent could not have been any clearer and that there was no further misgendering or other issues raised with the respondent.  The complainant indicated that this was because they were absent on sick leave.

It was put to the complainant that the email of 3 May 2021 only concerned pronoun usage and that no formal complaint was ever taken.  The complainant noted that they didn’t trust going back to the company that had been dismissive of them previously.  The complainant indicated that they wanted written assurances.  It was put to the complainant that they were aware of the grievance procedure, at the very least on 5 May as they had accessed it, and that the only complaint raised was one whereby they insisted that the manager kept it to themselves.

The complainant noted that if the respondent had made any effort, they would not have resigned and that the respondent only made half-efforts and that those efforts were not appropriate.  The complainant noted that they couldn’t say whether the misgendering was deliberate or just raised through ignorance but noted that they were not being treated with respect.  The respondent put it to the complainant that their own tweet referring to the “lesbian boss at work” was being slightly disrespectful.

Under redirect, the complainant confirmed the working locations, noted that the lack of communication was a massive thing (post 3 May 2021) and also raised a complaint about being slapped on the rear.

The respondent’s representative noted that the original complaint form related only to the use of pronouns and attempts to resolve matter and that it was not the case that they were on notice of other allegations.  The respondent noted that the complainant was on sick leave when they resigned.  This occurred shortly after a meeting where the Manager spoke to all staff, instructing them to abide by the complainant’s preferred pronoun.  It noted that not a single thing happened after that.  It was noted that the complainant resigned without invoking the Dignity, Harassment, Sexual Harassment procedure.  It was further noted that there was no justification for the constructive dismissal.

The respondent submitted that the complainant’s claims are each denied by the respondent. It was noted that the complainant’s contention that they were discriminatorily dismissed is without foundation. The complainant resigned from their employment on 6 May 2021. The complainant did so without invoking the internal procedures of the respondent. It simply cannot be stated that the circumstances leading up to the complainant’s resignation were such as might warrant a finding of discriminatory treatment by the respondent.

The respondent submitted that it has grave concerns regarding the facts now advanced by the complainant in support of discriminatory treatment (in respect of the terms and conditions of employment), harassment and sexual harassment, it denied that the complainant was treated in a discriminatory manner or in a manner which contravened the provisions of the Acts. The respondent suggested that it should be noted that the majority of the allegations contained in the complainant’s complainant form and submissions (the accuracy of which are not accepted) are matters which had never previously been raised by the complainant during the course of their employment with the respondent. Insofar as the complainant seeks to rely on those matters not previously known to the respondent in the context of these claims, it is submitted that those matters cannot possibly give rise to a liability on the part of the respondent under the Acts.

As a preliminary objection, the respondent objected to the complainant’s pursuit of this claim of discriminatory dismissal under the Acts in circumstances where, as is evident from the below factual submissions and supporting documentation, the complainant resigned from their position on 6 May 2021.

The respondent submitted that the complainant identifies as gender non-binary and, it is understood, underwent gender reassignment surgery in or around late November 2019. Since in or around this time, the complainant expressed a preference to be referred to using the “they/them” pronouns. The respondent submitted that it was fully supportive of the complainant throughout the course of their employment and facilitated the complainant with extensive time off and certain other accommodations in their working conditions during this period. Following their transition and change of name, the respondent took all necessary steps to amend the complainant’s details on its system.  The respondent submitted that its management made every effort to respect the complainant’s wishes in respect of the use of pronouns.

The respondent submitted that that on 12 April 2021 the complainant raised concerns regarding the failure in the part of certain employees of the respondent’s Service Station to refer to them by their “they/them” pronouns. The manager of the premises took immediate steps to resolve the matter at a local level. Steps were also taken by the Site/Area Manager during this period to address the complainant’s concerns regarding the use of pronouns, including by calling a staff meeting (with the agreement of the complainant) at which members of staff were requested to address the complainant using their proper/preferred pronouns. At no stage did the complainant raise a formal complaint in respect of the treatment alleged to have been suffered by them during the course of their employment – on the contrary, the complainant expressed a preference to have matters addressed by informal means – a request that was fully honoured by the respondent and its management.

The respondent submitted that it has no knowledge of allegations contained in the complainant’s complaint form (regarding alleged harassment / inappropriate comments made to the complainant by fellow co-workers). Those are not matters that had ever before been raised by the complainant and were detailed for the very first time in the complainant’s submissions, received on 24 October 2022. The Respondent expressed grave concerns regarding the attempt to introduce such matters for the first time in the context of these claims.

Following receipt of the complainant’s submissions, the respondent submitted that it has taken steps to take instructions and get the account of those staff members still available to the respondent, against whom the complainant now seeks to advance those allegations of harassment. Those allegations have been universally met with shock, disappointment and disbelief. The respondent submitted that every effort was made to support the complainant during the course of their employment with the respondent. The respondent reiterated that the sole issue advanced by the complainant was the issue of pronoun usage (an issue which was treated with sensitivity and seriousness by the respondent). At no stage did the complainant raise any of the other matters now being advanced in support of their claims of discrimination, harassment and sexual harassment.

The respondent submitted that on 6 May 2021, at a time when the complainant was on certified sick leave and the respondent had taken active steps to address the complainant’s concerns regarding use of their pronouns at work, the complainant elected to tender notice of their resignation to the respondent. They did so without invoking the internal procedures (including the respondent’s grievance policy) in respect of the concerns now forming the subject of these claims.

The respondent submitted that in all of the circumstances, it is clear that the complainant resigned from their position and there is simply no basis to assert that the complainant was discriminatorily dismissed from the respondent’s employment.

The respondent submitted that in circumstances where the fact of dismissal is clearly in dispute in this case, it is well established that the burden rests with the complainant to prove, in the first instance, that either they were dismissed or that the circumstances giving rise to their resignation amounted in law to a constructive dismissal. Whilst it is unclear precisely which of these positions the complainant seeks to adopt in advancing their claim of discriminatory dismissal, it is submitted that they have failed to present any facts or evidence which might be supportive of either position.

Notwithstanding the foregoing, the respondent relied on the factual circumstances advanced in support of its position.

The complainant was employed from 9 April 2019, initially as a Sales Assistant and more recently as a supervisor within the franchise in the Service Station.  As an employee, employment was subject to the policies and procedures set out in the respondent’s Employee Handbook, which includes a specific Grievance Policy, an Anti-Bullying and Harassment Policy.  The respondent submitted that, as reflected in the handbook, it is an equal opportunities employer and does not discriminate on the grounds of gender, sexual orientation, disability, age, membership of travelling community, marital or family status, race or religion in its practices and procedures. It was noted that the complainant underwent specific training in respect of the Employee Handbook on 4 May 2019. In addition, a copy of the handbook is available to all employees, including the complainant at work.

The respondent submitted that it has in place a robust and comprehensive system of policies which are designed to promote dignity at work and to ensure, as best as possible, that each employee may feel protected in the event of them experiencing treatment of a discriminatory or harassing nature.

At the time of the complainant’s taking up employment, they identified as female and used the pronouns “she/her”. In or around Summer 2019, the complainant informed their manager that they were changing their given name.  In or around late 2019, the complainant requested and was granted an extended period of leave by the respondent in order to facilitate them undergoing a surgical procedure as part of the transitioning process. It is understood this procedure took place in the United Kingdom. In addition to granting the complainant leave, the respondent facilitated the complainant’s sister (also an employee of the respondent) going on a period of extended leave so as to enable her to accompany and support the complainant going through that process.

In or around January 2020, when the complainant returned to work, they expressed a preference to fellow members of staff that they would no longer be referred to using the pronouns “she/her” (which had previously been used by the complainant) and they should be referred to using the gender nonbinary pronouns, “they/them”.

The respondent submitted that a significant and meaningful effort was made by the respondent, its management and (in the respondent’s experience) its staff to adjust to this change and to respect the complainant’s stated wish to be referred to using they/them pronouns. That is not to say – as one would expect in any such situation – that members of staff did not on occasion refer to the complainant using the incorrect pronouns, in error. Every effort was made by the respondent’s management to abide by the complainant’s wishes. The complainant’s allegations of discriminatory, harassing and/or sexual harassing behaviour against the respondent and members of its management (advanced for the first time in their complaint form and submissions) are each denied in the strongest of terms.

The respondent noted that on 12 April 2021, a site management meeting took place at which the complainant, manager, franchise manager and supervisor were present. At the end of that meeting, the manager invited the attendees to raise any issues in relation to the business. The complainant raised concerns regarding what they stated was the incorrect use of their pronouns by other members of staff. This was the first occasion when the complainant expressed such concerns to the manager.

The respondent noted that on 16 April 2021, the complainant approached a manager on site asking them to speak to another member of staff regarding their use of pronouns when referring to the complainant. The manager indicated that he would have a meeting with the staff member in question, to seek to address the complainant’s concerns.

On 20 April 2021, in advance of the meeting between the manager and the staff member in question, the complainant approached the manager and requested that they be permitted to sit in on the meeting. This meeting took place on 20 April 2021 and the complainant, the manager and relevant staff member were all in attendance. During this meeting the complainant expressed their concerns directly with the other staff member and the manager requested that every effort be made to address the complainant using the appropriate “they/them” pronouns. At no stage during the course of this meeting did the complainant raise allegations or concerns of harassment of the kind now being advanced by them in their complaint form. At the conclusion of this meeting, the manager was led to believe that the complainant’s concerns had been addressed and that a conscious effort was going to be made by all present to respect their wishes in the usage of pronouns. The respondent is not aware of any further issue arising in relation to the complainant’s experience at work.

The respondent submitted that on 21 April 2021, the complainant wrote to the Site/Area Manager raising concerns regarding their treatment at work. Specifically, the complainant alleged that they suffered discrimination on the grounds of gender (of an unspecified kind) at work and that the manager, during the course of the above meeting on 20 April 2021, had “misgendered” them and used unacceptable language stating that they “chose” to be transgender. At the conclusion of their email, the complainant stated, “I would appreciate if this conversation could be kept between ourselves for the time being as I worry about the reaction to me getting in touch with you”.

The respondent submitted that on 22 April 2021, the complainant submitted a medical certificate stating that they were unfit to attend work for a period of 2 weeks. The Complainant did not return to work prior to resigning from their position by letter dated 6 May 2021.

The respondent submitted that on 22 April 2021, the Site/Area manager responded to the complainant’s email, acknowledging their concerns and stating that “it is in no way how we would want any of our colleagues to feel in the workplace”. He invited the complainant to attend a meeting at which he would endeavour to resolve the issues and to “ensure a respectful and inclusive environment for everyone”. He assured the complainant that he would not speak to the local manager but stated that “as a company with an open-door policy I can assure you that the manager would not change his reaction towards you in any way for raising this point”. The complainant indicated that they could attend a meeting on Friday 23 April, as suggested by the Site/Regional manager.

The complainant met with the Site/Regional manager on 23 April 2021. During this discussion which lasted for approximately one hour, the complainant was given an opportunity to outline in full their concerns. Those concerns were focused on the use of pronouns in the workplace and the failure on the part of staff members to refer to the complainant using the “they/them” pronouns. At no stage during this meeting did the complainant raise harassment allegations of the kind now being advanced in their complaint form. During the course of this discussion, the Site/Regional manager identified to the complainant that they had two options – the first was to take a formal approach which would involve an investigation being carried out under the respondent’s grievance policy. The second option was that he would attempt to resolve matters by informal means, by holding a meeting of all relevant staff members, which he would facilitate, at which the complainant’s concerns could be addressed. The complainant expressed a wish to have the issue dealt with by informal means in the first instance.

The respondent submitted that on foot of the above meeting, a meeting was requested with all relevant staff members. That meeting took place on 29 April 2021. Present at that meeting was Site/Regional manager), the complainant, the franchise manager, local manager and four other members of staff.  The issue addressed at that meeting was the complainant’s concern regarding the use of pronouns. No other issues were raised by the complainant. This meeting provided an opportunity for the complainant’s concerns to be addressed and the site/regional manager followed up by saying that “everyone needs to make a conscious effort to use they/them, and we all need to heighten our awareness of the correct pronouns”. This meeting (which was agreed to and attended by the complainant) marked a specific and meaningful attempt by the respondent’s management to address the complainant’s concerns regarding pronoun usage. It was the impression of the managers present at the meeting that the complainant was satisfied with the approach being adopted by the respondent and that the meeting marked an attempt to resolve their concerns.

The respondent submitted that on 3 May 2021, the complainant wrote to the site/regional manager by email, seeking him for the first time to sign a document, “outlining the situation in work to [date]” and “what actions will be taken if the last meeting is not successful in solving the issue”. In this email, the complainant set out a summary of the meetings which had been held in relation to their concerns, to date. Notably, while their email made reference to the issue of pronoun usage, it did not make any reference to other allegations of the kind now being advanced by the complainant. This email was sent at a time when site/regional manager was on annual leave, he returned to work on 5 May 2021.

The respondent submitted that on 6 May 2021, at a time when the complainant remained on sick leave, the complainant tendered notice of their resignation. The complainant expressed a wish that they would not have to return to the workplace.

The respondent submitted that whilst it is acutely mindful of the sensitivities surrounding the complainant’s transitioning process, it is simply incorrect for the complainant to assert that they had been subjected to treatment of the kind which might warrant a finding of discriminatory treatment contrary to the provisions of the Acts. The respondent submitted that it had at all times endeavoured to approach the complainant with sensitivity and compassion and, in truth, sought to support and accommodate the complainant throughout the period in question. At the time of their resignation, the respondent, through its management, had taken concrete and meaningful steps (all in consultation with the complainant) in order to ensure as best as possible that they would enjoy a respectful and inclusive working environment.

The respondent submitted that it would now appear that, notwithstanding their participation in those process and meeting, the complainant had in fact formed a fixed and quite unreasonably negative view regarding the respondent’s efforts. This is evidenced from the posts made by the complainant on social media throughout the period in question, which have since come to the Respondent’s attention.  Regrettably, the complainant elected to resign from their position rather than return to work.

The respondent submitted that Section 85 A5(1) of the Employment Equality Acts states as follows: “Where in any proceedings facts are established by or on behalf of a complainant for which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

The respondent submitted that it is well-established that the WRC or Labour Court will require a complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has been, or would be treated on the basis of the one of the one or more of the nine discriminatory grounds cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Healthboard v Mitchell where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary factors establish to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

The respondent further submitted that in the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated that in respect of the provision of Section 85A that: “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed categories of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

The respondent noted Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established as further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

The respondent submitted that although the complainant’s claims are firmly disputed, it submitted that the complainant has failed to provide adequate facts from which it may be inferred that it has engaged in unlawful treatment of the kind indicated on their complaint form. It submitted that the claims instituted by the complainant under the Employment Equality Acts 1998 to 2015 have not been substantiated and ought to be dismissed.

As regards the complaints of harassment, the respondent submitted that Section 14A (7) (a) of the Acts defines harassment and sexual harassment as follows: In this section— (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, nonverbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The respondent denied that the complainant was subjected to any form of harassment or sexual harassment in the workplace. The only matter of concern that had been raised by the complainant with the respondent related to the use of pronouns by their work colleagues in the workplace. Insofar as it has been suggested that the unintentional use of incorrect pronouns in the workplace might constitute harassment and/or sexual harassment, this is denied by the respondent.

The respondent placed specific reliance on the case of A Patient v A Hospital (Dec-s2014-020), a decision of the Equality Tribunal in which it was claimed by the complainant (a hospital patient who had undergone gender re-assignment surgery) that the respondent hospital had engaged in discriminatory treatment of her (including harassment and sexual harassment) by reason of the failure on the part of the hospital’s consultant and registrar to use the correct pronouns when addressing the complainant. In that case, which bears similarities to the immediate case, the Equality Officer found as follows: The complainant submits that the consultant’s behaviour [in referring to her using the wrong pronouns] amounts to harassment. The complainant was clearly upset by the behaviour of the consultant in making a reference to the incorrect gender, however I am not satisfied that what occurred during the consultation amounted to a hostile degrading or offensive environment, within the meaning of the Equal Status Acts. In the circumstances I am not satisfied that the complainant has established a prima facie case of harassment.

The respondent submitted that, without prejudice to the forgoing, if the Adjudication Officer disagrees with the respondent in respect of the above arguments and finds that a prima facie case of discrimination has been established (which is strongly denied), it is submitted that the respondent would in any event be entitled to rely on the statutory defence set out in section 15(3) of the Acts.  Section 15 of the Acts provides as follows: (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. […] (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee- (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description

The respondent submitted that it has placed the utmost importance on maintaining dignity and respect in the workplace. It has put in place clear policies affirming the right of every employee to dignity and respect at work and setting out the procedures which apply in the event of non-compliance by any employee. In addition, the respondent and its management took immediate and meaningful steps to resolve those issues raised by the complainant (regarding the use of pronouns in the workplace), including proving the complainant with a full opportunity to ventilate their concerns, offering the option of a formal investigation into those concerns and holding meetings with relevant members of staff (with the complainant’s agreement and participation) with a view to resolving those concerns.  The respondent suggested that each of these measures constitute steps taken by the respondent to prevent discrimination and harassment in the workplace, within the meaning of section 15 of the 1998 Act. In the circumstances, it is submitted that the Respondent has taken all steps as were reasonably practicable to prevent discriminatory conduct of the kind alleged by the complainant.

The respondent noted that in their claim, the complainant is seeking to maintain that they were in effect constructively dismissed on discriminatory grounds. However, in asserting a constructive dismissal, the complainant must satisfy one of two tests which have been recognised time and time again by the WRC and the Labour Court. Those tests were articulated by the Labour Court in the case of Office and Industrial Cleaners Limited v Connolly, as follows:

“[The legislation] envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”, an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance as held. Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving. It is this latter reasonableness test that is relied upon by the complainant.”

The respondent noted the case of Mc Cormack v Dunnes Stores UD14 21/2008 where the EAT stated that in respect of the burden resting with a complainant in such cases: “the notion places a high burden of proof on the employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures or otherwise in an attempt to resolve her grievance with his/her employer. The employee would need to demonstrate the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” 

The respondent submitted that whilst the foregoing authorities relate to claim brough under the Unfair Dismissals Acts 1977 as amended, it is submitted that the same tests must be satisfied in a case of constructive discriminatory dismissal. It is respectfully submitted that the actions complained of by the complainant do not (and could not possibly) amount to unreasonable conduct of the kind envisaged in the second test outlined above. There is no question that the respondent’s actions were “so unreasonable as to make the continuation of employment with the [respondent] intolerable”. The complainant failed to invoke the grievance procedure.

The respondent noted that it is well-established that in cases alleging constructive dismissal and constructive discriminatory dismissal an employee should invoke the employer’s grievance procedures in an effort to resolve their grievance. As expressed by Dr Mary Redmond in her text, Dismissal Law in Ireland, this duty is regarded “as an imperative almost always in employee resignations”. Where grievance procedures exist, they must be followed. This longstanding position was affirmed by the Employment Appeals Tribunal in the case of Conway v Ulster Bank Limited. The complainant in this case was well aware of the existence of a grievance procedure within the respondent which ought to have been utilised in the event of their having concerns of the kind ventilated in their submissions. The complainant did not invoke that procedure. The respondent submitted that the complainant’s claim ought to be dismissed on this ground alone.

The respondent submitted that where it has been found that an employer has not protected their employees, then certainly a case against them should succeed. This is not one of those cases. The complaint put forward at the hearing is a million miles away from that outlined in the complaint form. The complaint in the complaint form states that the resignation of the employee was related to pronoun usage however a whole host of other allegations had been made and allegations have been raised that are nothing to do with this case.

The respondent submitted that the allegations in the submissions have not been borne out in evidence. The only incident that was raised with the employer, the outing incident alleging sharing social media content from one worker to another relates to an incident where the complainant themselves identified as trans and binary in social media. In that case this complaint was action by management and the work colleague was told in no uncertain terms not to take such action again.

The respondent submitted that other issues raised during the hearing and in recent submissions seemed to have evaporated. The pronoun use issue put forward in the original complaint form was the only issue raised and it is a long way from the case set out on paper in the complainants’ recent submissions. However, it should be noted that pronoun misuse is not to be belittled and is a substantial complaint in itself.

The respondent noted that when someone transitions in the workplace it is not simply a matter of flicking a switch, everyone is human and there is a certain amount of leeway to be allowed when misgendering has occurred. The respondent noted that there was no wilful disregard of the complainant. The respondent noted that the complainant said that no meaningful action was taken however this has not been borne out in the evidence provided by the respondent.

The respondent submitted that the first time the issue of misgendering was raised was on 12 April 2021 and the complainant resigned 3 weeks later. Meetings took place on 20 April, 23 April and again on 29 April. It is the complainant's own case that staff members were told that there would be disciplinary action including dismissal if people continued to misgender the complainant. This does not amount to wilful disregard.

On the issue of the resignation the respondent submitted that there was a failure on the part of the complainant to initiate a formal grievance. The complainant repeatedly claimed not to have access to the grievance procedure, but this was an outright falsehood. The complainant eventually confirmed in cross examination that they had accessed the handbook and specifically the grievance procedures.

The complainant’s failure to invoke the grievance procedure, or not to have exhausted the internal grievance procedure, combined with other issues raised demonstrate complete lack of credibility and the complainant has shown a willingness to admit or change the truth to suit their needs.  The respondent noted that the complainant said that they didn't have access to the grievance procedure yet the appended grievance procedure to their complaint form.

The respondent submitted that section 15 (3) of the act provides for situations such as this: the complainant took such steps as were reasonably practical without undue delay. The respondent is not aware or was not made aware of any sexual harassment issues. In case of the issues, they were made aware of, they took meaningful action.

On the issue of constructive discriminatory dismissal, the respondent noted that this is a high bar to prove and that it must arise from the employers conduct that was so unreasonable that it amounted to repudiatory breach contract. The complainant decided to take the decision to tender their resignation following consultation with the grievance policy. Although this was a difficult journey the respondents admitted that there is no basis on the evidence before the WRC that the respondent ought to be held responsible.

Respondent witness evidence:

Witness #1 Mr A, Site Manager

The witness noted that although the complainants name change took place in 2019, and for employment purposes the name change was effected on the system in February 2020, he first became aware of the change in 2021 along with the department manager. He said that there was a general meeting on the 12th of April in the public area at a high table with eight chairs and at the end of the meeting the issue pronouns were raised.  He was not aware of any allegations of harassment or sexual harassment at any stage and throughout his meetings with the complainant and with any other staff members the issue of the correct pronoun use was the only matter that was dealt with. He conceded that he may have used incorrect pronouns and noted that he was not perfect, he stated that he may have apologised but can't recall any particular incident. He said he tended to use the complainant's first name as it was easier than they/them.

When he was asked about his use of the word ‘epiphany’ to describe a realisation regarding transgender issues, he noted that this word was not generally in his vocabulary, and he doesn't recall the incident raised by the complaint.

He noted that towards the end of the complainant employment he did have words with another colleague and finished up by stating to that colleague that if there was no genuine attempt to use the correct pronouns that there would be consequences.

The witness stated that he was not aware at any point that the complainant wished to take a formal complaint regarding the use of incorrect pronouns. He stated that no other issues were raised because that would have been a “different conversation”. He repeated himself in that he recalled stating to the colleague who was misgendering the complainant that disciplinary action, up to and including dismissal would arise if they didn't make better efforts.

The witness stated that the next communication he received was the resignation letter from the complainant, he stated that he queried as to whether the complainant was willing to give the respondent the opportunity to rectify matters but was informed no as the complainant wanted to go and did not want to work out their notice period. The witness stated that he only became aware of sexual harassment allegations more than 6 to 12 months later, and he noted that he was personally upset because these matters were never mentioned to him previously. He had no awareness of anything in relation to name calling or in relation to the slap incident as these were never raised with him.

The witness reiterated that when the issue of misgendering was raised with him he spoke to the co-worker and to the best of his knowledge that was an end the matters. He had no recollection of taking any formal grievance.

Under cross examination It was noted to the witness that the revelation regarding the name change gender by a colleague resulted in no formal sanction.  The witness stated he was quite clear with the complainant colleague that's another action would result in serious consequences. As regards the reading material, he felt he did not need further reading materials, as he felt he was doing everything necessary at the time. He was asked whether he ever used any sexually inappropriate comments and categorically stated no that he did not. He was then asked did he ever excuse the behaviour of others by saying that they were of an older generation, but he denied using this to excuse others behaviour. He denied commenting in any derogatory manner and stated that they were total lies from the complainant. He was asked whether he made any comment about the complainant being wet and he concluded that he did potentially use it but only if it was raining outside.

Witness #2 Mr B – Regional Manager

The second witness for the respondent was the regional manager.  He noted that he had no day-to-day relationship with witness A nor with the complainant. He said he became aware of the complaint regarding misgendering on 21 April 2001. He said he was dealing with the complaints but noted that he worked on over 18 sites. He stated that when he read the complaint, he knew it was quite serious and sought assistance from in-house counsel before replying to the complaint.  He stated that he might have been late to the meeting regarding these issues, as he has a number of responsibilities and that, in retail, it is hard to pin down an exact time for a meeting, but this did not entail any disrespect.

The witness stated that he feels he was misquoted in the complainant's submissions. He stated to the complainant that there were two options, the formal complaint route or secondly, a meeting with all staff. The second option was the route decided by the complainant.

The witness noted that there was no reference to any allegations of sexual harassment and the only issue raised by the complainant was the issue of misgendering, which in itself was a huge issue, but it was not sexual harassment.

The witness noted that the complainant decided to attend the meeting even though they were out on sick leave on 29 April. He noted that a lot of communication is assisted by direct eye contact. He stated that mistakes are OK, but that staff have to try to correct any misgendering and he outlined that, in no one certain terms, that continued misgendering of the complainant would lead to disciplinary action up to and including dismissal. He understood that the next steps were that the complainant was to return to work.

The witness said that he was sent an e-mail on the 3rd of May but was on leave until 5 May and he was not sure of what was being asked of him to do. He said he did not take matters lightly and had reached out to human resource is for advice in dealing with matters through the formal route, if that was raised. He said that although he outlined the options to the complainant, the formal complaint route was never raised with him. On the following day he was notified of the complainant's resignation which “threw him for six” as following the meeting he thought he knew which way they were going.

The witness stated that the first, and only time, he became aware of sexual harassment allegations was as part of the WRC submission and he noted that the option of an informal complaint is not an option where sexual harassment complaints are concerned.

Under cross examination the witness confirmed that prior to the e-mail of 21 April he was not aware of any issues nor any of the allegations that were now in front of the WRC. He stated that he had needed to hear the complainant first before deciding what actions to pursue and what were the appropriate routes open to him. He confirmed that he had to keep a certain amount of distance due to Covid 19 protocols in relation to the meeting in 2021. He stated that he received a direction from the complainant to deal with the matter informally, he was not sure on how to proceed and sought advice from Human Resources.  He was in the process of getting information from them when the complainant’s resignation was received. He said that the formal route would have been OK with him but that this was not opted for by the complainant.

As regards the issue of social media comments, he stated that he was not on Social Media so he was unaware of any matters on Social Media. When he was asked whether he considered writing to the complainant to ask them to reconsider, he stated that he did reach out and was informed that the complainant did not want to return.

The complainant submitted a complaint under the Employment Equality Act to the WRC on 20 May 2021. The complaint is trans-, non-binary and is taking a complaint under the gender ground. This submission grounding the complaint indicates that the complainant believes they have been discriminated against by reason of gender, in relation to conditions of employment, having been subjected to harassment and sexual harassment. The complainant provided a brief overview of their complaint in that documentation including reference to sexual harassment.  The complainant’s representative submitted accompanying documentation which indicated that they had been subjected to unnecessary, unwarranted and hurtful comments during the course of their employment with the company. It was also submitted that the complainant had raised these matters internally with various levels of management, to no avail. In submissions the complainant’s representative put forward the case of Hannon V First Direct Logistics Limited (DEC S2011-066) To support the proposition that the gender ground of the Act encompasses transgender. It was indicated in the documentation that detailed written statements of claim would be submitted in advance of any adjudication on this matter.  Detailed submissions regarding the complaint were submitted to the WRC the day before the hearing of this matter commenced.  The complainant initially alleged that they were being misgendered at work by colleagues and submitted that this amounts to discrimination under the gender ground. The complainant submitted that this misgendering was not a result of innocent mistake but rather was part of a campaign against them by colleagues.  In addition, in the submissions made the night before the first day of hearing, the complainant for the first time submitted details of allegations regarding harassment and sexual harassment. These had not been detailed previously in any fashion.

The respondent accepted the proposition that the gender ground of the Act encompasses transgender.  The respondent also accepted that misgendering took place but argued that as the employee was previously a female employee who was employed prior to their transition, a certain amount of incorrect pronoun usage would arise due to simple mistake on the part of colleagues. The respondent submitted that in the only complaint made to it, that regarding a particular colleague who was wilfully using inaccurate pronouns, the colleague was subjected to the respondent’s disciplinary procedure, albeit on an informal basis. The respondent submitted that some of the misgendering may be accounted for by way of innocent mistake on the part of colleagues and some can be accounted for by the fact that the complainant was a female employee prior to transition and colleagues found it difficult to get used to the change. In relation to the issue of sexual harassment the respondent noted that no claim of sexual harassment was ever lodged with the respondent, and if one had been such complaints must be dealt with formally. The respondent submitted that in relation to the allegations of harassment now in front of the WRC, the complainant had never previously raised them with the respondent and therefore they were not in a position to deal with such matters.

On a general note, the events outlined by the complainant took place in 2020 and 2021 when the issue of non-binary transition was not used in as common a fashion. The misgendering of the complainant also took place in an atmosphere where the complainant had previously worked as a female. In addition, I note that from a human perspective it may be difficult to come to terms with a non-binary transition and that even in relation to this case, the complainants own legal representation misgendered the complainant repeatedly in their submissions.  However, efforts must be made to resolve difficulties that arise and the issue being considered here is purposeful misgendering of a person, with discriminatory intent.

I find two issues particularly noteworthy in relation to this complaint, the first is that the late submission of documents by the complainant raised a number of allegations that not only had not been brought to the attention of the WRC, but they had not been raised with the respondent previously either. This was confirmed by the complainant in evidence.  It is difficult to see how an employer is at fault for how they dealt with allegations that were never raised with them in the first place.

The second issue is that of the credibility of the complainant. The complainant was asked repeatedly whether they had accessed the employee handbook and grievance procedures before submitting their resignation and repeatedly denied that they had access to such documentation. Eventually the complainant when faced with documentary, dated evidence of accessing this documentation, admitted to having downloaded the documentation the day before they resigned.

The respondent submitted that colleagues found it difficult to get used to the change, and the respondent accepts that where there was deliberate misgendering or discrimination on the part of a colleague, that colleague was spoken to and, rather than the matter being dealt with in an offhand fashion, that particular colleague was informed that repeated misgendering would result in the termination of their employment. I note that the complainant took particular issue with this work colleague outing them as transgender by referring another colleague to the complainant’s Facebook page. However, the complainant confirmed that their Facebook page had no security protections and was not limited in any fashion and therefore when the complainant says that their colleague publicly outed them, this is not possible as the complainant themself had publicly documented their transition journey and their non-binary status in an unlimited social media post. However, I note that when the complainant raised an issue with the respondent about this, the complainant’s colleague was spoken to by management and was informed that if he continued these behaviours, he would be dealt with under the disciplinary procedure with sanctions up to and including termination of employment being considered. Having regard to this issue I find that the respondent dealt with the matter, referred the colleague to the disciplinary procedure and outlined what course of action would be taken, up to and including termination, should they continue their behaviours.  I  find that this was sufficient in dealing with an informal complaint.  Although the actions taken by the respondent may not have been the actions that the complainant wanted, they did take action arising from the complainant complaint to them regarding their colleague.

As regards the issues of harassment and sexual harassment, I am not satisfied that the complainant has presented any evidence whatsoever to indicate that they pursued a complaint, either formal or informal, with the respondent. In a situation where the respondent has not been put on notice of harassment or sexual harassment, there is no onus on an employer to take corrective action.

Section 15 of the Employment Equality Act 1998 states as follows:

Liability of employers and principals.

15.—(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

In relation to the incidents brought to the employer by way of complaint, I find that the employer acted upon that complaint and invoked the disciplinary procedure with the transgressor, up to an including bringing the issue of termination to that person’s attention.  Therefore, it cannot be said that ‘the complainant had raised these matters internally with various levels of management, to no avail’.  The complainant used this issue as a reason why they did not have recourse to the grievance procedure prior to tendering their resignation.

At the outset the complainant detailed how they were unaware of the employee handbook and grievance procedures. This was detailed in submissions and was detailed in the oral evidence of the complainant. The complainant was employed in a supervisor’s role. Evidence was provided that the complainant had not only access to the handbook and procedures but had downloaded the handbook and procedures the day before submitting their resignation. The complainant was not able to provide any explanation for this discrepancy in their evidence. This fact calls into question not only the complainant’s assertion of a constructive dismissal but also calls into question the credibility of all of the evidence provided by the complainant.

The respondent noted the complainant is seeking to maintain that they were in effect constructively dismissed on discriminatory grounds.  In this regard, they noted the case of Mc Cormack v Dunnes Stores (UD14 21/2008) where the EAT stated that in respect of the burden resting with a complainant in such cases: “the notion places a high burden of proof on the employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures or otherwise in an attempt to resolve her grievance with his/her employer. The employee would need to demonstrate the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” 

The respondent also noted that while this consideration relates to a claim brought under the Unfair Dismissals Acts 1977 as amended, the same tests must be satisfied in a case of constructive discriminatory dismissal. It submitted that the actions complained of by the complainant do not, and could not possibly, amount to unreasonable conduct of the kind envisaged in the phrase “so unreasonable as to make the continuation of employment with the [respondent] intolerable”.

The respondent noted that it is well-established that in cases alleging constructive dismissal and constructive discriminatory dismissal an employee should invoke the employer’s grievance procedures in an effort to resolve their grievance. It was noted that in Dismissal Law in Ireland (Redmond), this duty is regarded “as an imperative almost always in employee resignations”. Where grievance procedures exist, they must be followed. This longstanding position was affirmed by the Employment Appeals Tribunal in the case of Conway v Ulster Bank Limited. The complainant in this case was well aware of the existence of a grievance procedure within the respondent which ought to have been utilised in the event of their having concerns of the kind ventilated in their submissions. The complainant did not invoke that procedure. The respondent submitted that the complainant’s claim ought to be dismissed on this ground alone.

Having regard to the respondent’s arguments, I note that the complainant eventually admitted to accessing the Employee Handbook and Grievance procedure the day before handing in their resignation.  I am persuaded by the reasoning outlined in McCormack v Dunnes Stores and I consider that it was incumbent upon the employee to invoke and pursue the existing grievance procedure, particularly in circumstances where it was previously invoked to some effect.  That the complainant doesn’t believe that the resolution of an informal complaint was satisfactory does not negate the existence of, nor the duty to resort to, an existing grievance procedure.

As to the misgendering of the complainant, the respondent argued that there was innocent mistake on the part of some of their staff. This is understandable in circumstances where the complainant had been employed as a female and then changed to a non-binary employee. This is also understandable in circumstances where the complainant's own solicitor’s submission misgenders them repeatedly - anyone can make a mistake, and anyone may make more than one mistake.

Section 85A(1) of the Act deals with the burden of proof and states as follows:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Having regard to the facts that have been established by the complaint, I am satisfied that they have established facts from which it may be presumed that there has been discrimination in relation to the misgendering of the complainant.  However, I am also conscious of Section 15(3) of the Act:

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

I find that the actions taken by the respondent in relation to the complaint raised to it amount to a defence under Section 15(3) of the Act.

Accordingly, I find that the complainant was not discriminated against in accordance with Employment Equality Act.

Having regard to all the written and oral evidence presented in relation to this case, my decision is that the complainant was not discriminated against in accordance with the Employment Equality Act.

Employment Equality Act – Gender – Discriminatory Treatment – Constructive Discriminatory Dismissal – Harassment – Sexual Harassment.