ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056299

Parties:

Complaints:

Date of Adjudication Hearing:  18/08/2025, 11/11/2025, 12/11/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complaint is that the Respondent discriminated against the Complainant on gender grounds.

In accordance with Sections 13 and 14 of the Workplace Relations Act 2015, I have decided to anonymise this decision.  The relevant section of the Act is:

(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.

I have based my decision to anonymise on the special circumstances that certain sensitive details were disclosed during the hearings and the fact that a school with special needs pupils are involved in this case.

Summary of Complainant’s Case:

The Complainant is a Taxi Driver by trade and profession.

The Complainant is Transgender.  The Complainant was born male but commenced treatment to allow them to transition to a female identity in or around September 2020.  The Complainant later ceased said treatment and commenced de-transitioning in or around August 2024.

On 25 July 2023 the Complainant and Respondent entered into a contract to provide schools transport services by a taxi driver transporting special needs children and Special Needs Assistants to and from school.

On 23 October 2024 the Respondent unilaterally terminated the Complainant’s contract in circumstances in what it is submitted as unlawful discrimination under the Employment Equality Act 1998.

On the 27th of September 2024, the Complainant received a phone call from the Respondent wherein they were told that a complaint related to the use of ‘inappropriate language’ was made against the Complainant. No further information regarding the complaint was forthcoming at that stage.

On the 1st of October 2024, the Complainant requested details of the complaint made against them and indicated that they would not attend a meeting until such time as those details were provided, as they would not be able to properly represent/defend themselves at any such meeting in the absence of the details of the complaint against them.  Given the Complainant’s work in relation to the school, the Complainant was extremely concerned at apparently divulging to persons in the community that they were ‘under investigation’.

On the 9th of October 2024, the Complainant was notified that ‘several complaints’ regarding their conduct had been received and was invited to a meeting on the 15th of October 2024.  The Complainant agreed to attend this meeting for fear of repercussions should they refuse to do so.

The Respondent’s Child safeguarding Officer was in attendance which did nothing to allay the Complainant’s concerns.  Remarkably, no complaints were put in written form, just verbal accounts.  In particular, a complaint was put that an unnamed person had complained that conversations they had with the Complainant during the course of work were ‘inappropriate’.

The Complainant contends that some of the content of these conversations were almost verbatim leading him to think the conversations were recorded.  The conversations in question generally involved the Complainant’s transgenderism and/or the reasons behind the Complainant’s transitioning, namely a prior sexual assault.

The Complainant contends that these conversations, grounding the unnamed complainant’s complaints, were consensual conversations between adults when children were not present and that the particular complainant actively encouraged the conversations.  Further, the Complainant would not have engaged in the conversations had the safe space not opened up.

On 18 October 2024, the Complainant issued a written response to the complaints put to him.

On 23 October the Complainant was informed that the contract was ceased.  At this stage no written complaints had still been furnished.  On 24 October 2024, after the letter informing him that the contract had ceased, the Respondent informed the Complainant that the written response of 18 October 2024 had been received.

The contract was the Complainant’s only source of income.  No alternative work has been secured and the stress and anxiety caused to the Complainant by the Respondent’s treatment continues.

Evidence of the Complainant

The Complainant gave sworn evidence and was cross examined, summarised as follows:

He secured the contract with the Respondent in 2023 while transitioning from male to female.  He stopped transitioning on 19 August 2024.  He described how he loved the job, and described the duties, picking up children and SNAs and dropping them off to school and bringing them back from school.  On 27 September he received a phone call from Mr S telling him there was no requirement for his afternoon run.  No reason was given. A meeting was then arranged which he attended on 15 October 2024.  Conversations were relayed to him almost verbatim from conversations had with an SNA.  The Complainant stated that he had stopped transitioning in August 2024 and when he came back with a beard, the SNA kept questioning him about sharing personal details.  He said he did not want to discuss in front of children.   

In cross examination, the Complainant was questioned about a number of sensitive personal details discussed between him and the SNA.  He was also questioned about contacting parents and about speaking to children through the fence which was around the school yard.  The Complainant stated that he did nothing wrong and felt robbed of a job he loved.

Summary of Respondent’s Case:

Legal submission regarding status of complainant under the Employment Equality Acts

The Complainant was not employed on a contract of service and was engaged following a tender process for the purpose of driving children and their escorts to and from school. 

The Employment Equality Acts provide for the definition of contract of employment as “(a) a contract of service or apprenticeship or (b) any other contract whereby (i) an individual agrees with another person personally to execute any work or service for that person”.                                                In the context only of affording the Complainant to seek to rely on the protection of the Employment Equality Acts and not otherwise, and only in the context of these proceedings the Respondent accepts it is an employer and the Complainant is an employee in respect of the application of the Acts. 

The Respondent will demonstrate that it complied with its obligations to investigate a complaint with it in respect to service provided by it to children at a special school and that it did so in accordance with its policies and procedures and consistently with all other equivalent investigations irrespective of the gender or sexual orientation of the party under investigation.  In terminating the Complainant’s contracts for services the Respondent acted reasonably and in the best interests of the Respondent’s service users.

The Respondent outlined its record as an equal opportunity employer.

Burden of proof

The Respondent submits that in order to succeed in their discrimination claims the Complainant bears the burden of proving a prima facie case and only then does the burden shift to the Respondent to prove on the balance of probabilities that there was no discrimination in breach of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Case law including Southern Health Board v Mitchell and Melbury Developments v Arturs Valpeters were submitted in support of the argument that the Complainant had not established a prima facie case.

Factual Background

The Complainant entered into a contract for services as a taxi driver to provide school transport for children with special needs and their escorts.  Clause 2.15 of the contract provided  that the Contractor (the complainant) shall comply with the Respondent’s Child safeguarding statement, also with the company child safeguarding policy and the Code of Conduct.  The Contract provides that the Respondent at its absolute discretion can object at any time to any person nominated as a driver by the contractor and also can at its absolute discretion investigate any complaint against any driver.   “For the avoidance of doubt, [the Respondent] is under no obligation to conduct any such investigation and [the Respondent] may require the contractor to immediately withdraw the driver from the relevant route irrespective of whether or not [the Respondent] decides to conduct such an investigation.”

In or around 26 September 2024 the Respondent was informed of a complaint from the Principal of the school for which pupils and escorts the Complainant carried out driving duties.  The complaint originated from one of the school’s escorts and contained multiple issues as follows:

• Disclosure of sexual abuse and details
• Description of a couple being intimate in a doorway
• Walking in on partner being intimate with a man
• Asking the escort if she was ‘playing the field’
• Referring to ‘hump day’ in connection with ‘getting the ride’
• Comments on experience with intimate waxing
• Inappropriate contacts with childrens’ relatives (grandmother and mother)

By email of 26 September 2024 the Respondent notified the Complainant of the complaints and suspended the contract until further notice.

By email dated 27 September 2024 from the School Principal to the Respondent, the school Principal noted that despite the Complainant’s suspension he had engaged inappropriately with multiple parties.  These included direct contact with parents, deputy Principal and one of the escorts.  The email of 27 September also set out a number of incidents and issues identified by the school escort from 2023/2024 including allegations of inappropriate conversations, inappropriate rude and sarcastic behaviour, displaying bad behaviours driving aggressively and smoking in the vicinity of a child and parent. 

The Complainant was invited to and attended a meeting on 15 October 2024 during which the complaints in the form of 5 statements were read out to him. 

The Complainant made multiple admissions in the meeting including:

• Failure to report an incident of a child misbehaving and assaulting an escort
• Seeking the school Principal to remove an escort as she was ‘too quiet’, reserved and absent too much
• Left the school vehicle on more than one occasion and went to the school yard where children were in class and engaged with them causing stress and anxiety to the children who associated the driver’s presence with going home time.

The Complainant followed up with a letter dated 18 October 2024.  The Respondent advised the Complainant that they would take all matters into accounts and that breaches of the Contract and Code of Conduct could give rise to dismissal.

Following consideration of all the issues including the Complainant’s letter of 18 October 2024, the Respondent determined that the Complainant’s contract should be terminated for significant breaches of the code of conduct and safety protocols.

It is argued that the Respondent has and has had no issue with the Complainant’s transgenderism.  The Complainant was subjected to the exact same treatment as would be for every other contractor. It is not accepted by the Respondent that the Complainant was dismissed for discussing his transgenderism.  The Respondent has an obligation to balance its responsibilities and duty of care to school bus escorts and to ensure workplace health and safety as well as a duty to impose standards.    It is submitted that the Respondent’s decision was reasonable in the circumstances of the multiple issues raised regarding inappropriate conversations in the workplace.   These inappropriate conversations along with other breaches of child safeguarding and other protocols raised such concerns that the Respondent acted reasonably in terminating the Complainant’s contract.

Evidence from Safeguarding Officer

Evidence was given on affirmation by the Respondent’s Safeguarding Officer and Vetting Manager Ms MG.  She stated that in accordance with the contracts it is not the practice to give contractors any written complaints made.  They are given the content at the meeting.  She confirmed that she read out the complaints to the Complainant at the meeting on 15 October 2024.  She confirmed that the Complainant was upset at the meeting and claimed that he was there because he was transgender.  She confirmed that she assured him he was not there because of transgenderism but because there were complaints including that he had left his vehicle and gone to the school yard which he admitted and failure to report a child kicking the seat in the car and failure to report escort absences.  For these reasons, it was appropriate to find that the contractor was no longer suitable and his contract was terminated.  She stated that it was a sad situation but in no way involved discrimination.

Findings and Conclusions:

Legal definition of employer in this case

I note the Respondent’s acceptance that it is an employer and the Complainant is an employee in respect only of the application of the Employment Equality Acts in this case.

CA-00068524-001

Gender ground

The Complainant’s title described on the complaint form received on 9 January 2025 is “Ms”.

The cognisable period for this complaint is from 10 July 2024 to 9 January 2025.

The complaint is that the Complainant was discriminatorily dismissed on 23 October 2024.  The ground cited on the complaint form was “gender”.

The Complainant is Transgender.  The Complainant was born male but commenced treatment to allow them to transition to a female identity in or around September 2020.  The Complainant later ceased said treatment and commenced de-transitioning in or around August 2024.

During the first hearing, when asked by counsel for the Respondent by what pronoun by which to address the Complainant, the response was “him” or “he”.

The gender ground protects transgender persons from sex discrimination that is discrimination arising essentially if not exclusively on the sex of the person concerned.  (European Courts of Justice P v S and Cornwall County Council Case C-13/94 [1996] IRLR)

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

In this instant case, I find the Complainant has established the fact that he was transitioning during some of the period which gave rise to his ultimate dismissal and the burden of proof therefore shifts to the Respondent to prove there has been no discriminatory acts.  

The burden of proof shifts to the Respondent

I note the serious complaints against the Complainant and while according to the contract, the Respondent had the absolute discretion not to investigate those complaints, the Respondent carried out a thorough investigation and offered the Complainant the opportunity to respond at the meeting of 15 October 2024. I note the evidence of the Complainant that he divulged certain information in the course of conversations with the SNAs that he would otherwise not have divulged had he not believed he was in a ‘safe space’.  This element of the case is unfortunate and regrettable from the Complainant’s point of view.  However, in investigating this claim that the Complainant was discriminated against and was discriminatorily dismissed I must turn to the very serious allegations made, and whether these were related to the Complainant’s gender.  The complaints were that the Complainant had engaged in discussing explicit details of sexual abuse, sexual intimacy between strangers, acts of infidelity, intimate personal care issues and related sexual issues.  I find that these are not conversations relevant to the Complainant’s transgenderism.  The conversations within the workplace were inappropriate irrespective of one’s gender.  These inappropriate conversations along with other breaches of child safeguarding and other protocols raised such concerns that the Respondent acted reasonably in terminating the Complainant’s contract.  I find that the Respondent terminated the Complainant’s contract for reasons not related to transgenderism and therefore has not discriminated against the Complainant or has not discriminatorily dismissed the Complainant.   The complaint is not well founded.

CA-00068524-002

This complaint of discrimination on ground of sexual orientation was withdrawn at hearing.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00068524-001            Based on the findings and conclusion above, I have decided that the complaint is not well founded.

CA-00068524-002            Based on the findings and conclusion above, I have decided that the complaint is not well founded.

Dated:   22-01-26

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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