ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012014
Customer Service Advisor
Financial Services Provider
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 27/06/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employed with the Respondent, a financial services organisation, on a one-year fixed term contract basis on 30th January 2017. Their employment with the Respondent ended on 18th September 2017. The Complainant was paid a monthly gross salary of €2,050. A Complaint Form was lodged with the WRC on 8th November 2017.
The Complainant identifies as a nonbinary transgender person, and claims they were discriminated against and dismissed on grounds of their gender in breach of the Employment Equality Act.
Summary of Complainant’s Case:
The Complainant submitted that they were hired by the Respondent on 30th January 2017, as a Customer Service Advisor. They were hired as female because the Respondent did not provide an option for transgender individuals on their application forms. The Complainant was only given the option to be referred to as male or female. The Complainant commenced training on 30th January 2017. They were continuously praised by their instructor for their good work and was asked to assist others who were struggling in certain aspects of their work.
The Complainant received an assessment of their training in early March. They were informed that they had received the highest marks of any customer service operative. After this assessment the Complainant contacted HR and informed them that they were transgender. In mid-March the Complainant met with HR to discuss transitioning in the workplace. The Complainant felt this meeting went well. They were informed that there would be no issue with changing their name on the systems, allowances would be made for them being out of work for medical issues relating to transitioning. Management was informed as were the Complainant’s team leaders. The issue relating to the Complainant informing work colleagues was discussed.
A second meeting with the team leaders took place at which the matter of being transgender in the workplace was discussed. The Complainant was informed by their team leaders that the Complainant should not send an email to the team as they, the team leaders, were not happy that the Complainant should send out a personal email to their teams.
Around this time the Complainant informed their own team of their transgender status and informed them of the correct manner to address them using pronouns them, their, they etc.
The Complainant submitted that between March and August, they commenced wearing t-shirts on casual dress days related to their transgender identity and referring to the use of pronouns to describe themselves. This was done to bring their transgender, non-binary identity into normal conversation. The Complainant believed that if people knew about their transgender identity it would stop the constant distressing misgendering at work.
Between April and September, the Complainant had monthly meetings with their team leader. During these meetings the Complainant’s progress was discussed. They were praised for their product knowledge, call evaluations and demeanour with customers on the phone.
The Complainant was sick in late April. They provided a medical certificate from their doctor to cover the dates they were not in work. They returned to work before they had fully recovered. They met with their team leader who had them sign a document stating they understood the sick policy. The team leader explained to the Complainant that three periods of illness would mean that they would get a verbal warning and after that they would receive a written warning after which a meeting with HR would take place to see if the Complainant needed to see an individual from occupational health.
The Complainant fell ill during the first week of May and ended up in A & E. They brought a sick certificate in to work. They met with their team lead upon their return to work. They were again shown the form for their absence declaring that they understood what the team lead had informed them; that if they had one more instance of sick leave in the next six months they would receive a verbal warning.
In mid-July the Complainant was informed that their probation was being extended due to their sick leave absences. The Complainant was again praised for their work and on their demeanour on the phone.
Around this time, the Complainant contacted HR in relation to informing staff of their transgender status.
In early August the Complainant received a 10/10 in a survey from a customer who referred to them as a "young woman", this survey was sent to the Complainant, their team leader, their supervisor manager and others. The Complainant had several panic attacks from dysphoria because of the wide distribution of the information. The Complainant went to their team lead and informed him of this issue and requested that an email be sent out referring to the Complainant’s transgendered status.
The Complainant met with a shop steward around this time, as there was a lot of hesitancy about sending an email, drafted by the Complainant, to acknowledge their transgendered status. The shop steward requested a copy of the email which the Complainant sent to him. He stated that the Complainant would have the backing of the Union in this matter.
In late August, the Complainant received an email from HR saying that the case of coming out as transgender via email would be passed on to someone else in HR. HR were not in touch with the Complainant after this.
In early September, the Complainant met with their team leader for their interim progress meeting. The team leader praised all the Complainant’s statistics, call evaluations and general demeanour. The Complainant was asked to dress a bit more professionally during 9-5 shifts. The Complainant noted that it had been too warm to do so in the recent summer months but that they would do so in future. The Complainant inquired about probation. They were informed that if they didn't "f*** up completely by the end of the month that they should pass probation no problem".
The day after that meeting the Complainant was sent home from work owing to illness. They returned to work after three days. On their return they were told they must go home as their voice had not recovered. When the Complainant returned to work they handed in their sick certificates to their team leader. The Complainant was then told that because they were out sick three times in six months they were getting a verbal warning.
In mid-September the Complainant was made person of the week for having the best wrap up time on calls.
The Complainant submitted that on September 18th they met with their team leader. The Complainant was informed that their employment had come to an end. The Complainant was told to clear out their things, hand back their badge and was walked out of the building.
In verbal evidence given at the hearing the Complainant stated that they were hired in January 2017 and at the outset everything went well. In March 2017 the Complainant let HR know about their transgender status. The Complainant became ill at the end of April and was absent from work, but had medical certificates. The Complainant was conscious of the probation period but unfortunately got sick a short time later. In total the Complainant was absent on three occasions for a total of 11 and a half days.
The Complainant stated that when they went to HR initially they seemed supportive. However, the Complainant wanted to come out but felt discouraged from doing so by HR.
Regarding the 10 out of 10 score email the Complainant stated that they got a panic attack when the email was sent around. If an email had been sent out in advance, explaining their transgender status, as they had requested, then this could have been avoided.
The Complainant also stated that they were told that they would get a verbal warning regarding their absence levels but would still pass probation. As it transpired no verbal warning was issued and the Complainant was dismissed, they were told, because of their excessive absence levels.
In response to questioning the Complainant stated that a colleague with similar absence levels was not dismissed but had their probation period extended.
The Complainant firmly believes that they were let go from their job because of their transgender status and because they were kicking up too-much about being trans.
Summary of Respondent’s Case:
The Respondent provided a detailed written submission.
The Respondent submits that the Complainant’s employment was terminated on grounds of absenteeism during their probationary period, which amounted to 11.5 days in 6 months; the Complainant’s dismissal was lawful, not discriminatory and in accordance with the terms of their contract of employment. The Complainant’s gender status was not a factor in the decision to dismiss them and that the Complainant has failed to identify any or any appropriate comparator for their claim. Other employees of the Respondent, who are of either the male or female gender have been dismissed during their probationary period where they had similar levels of absence to the Complainant.
As background to the case the Respondent submits that the Complainant applied for the role of Customer Service Advisor as a female with a woman’s forename. The Complainant’s CV, passport, academic references, job application form and character references, all refer to the Complainant as a female
The Complainant’s application for a role was successful and they were issued with a contract of employment with the Respondent. The Complainant was employed by the Respondent on a fixed term contract dating from 30 January 2017 to 28 December 2018, subject to the entitlement on the part of both parties for early termination.
Following completion of their training, the Complainant commenced work in the role of Customer Service Advisor in March 2017. The Complainant’s role involved taking calls from the Respondent’s customers.
The Respondent submits that the Complainant was provided with extensive support by the Respondent following the notification of their transgender status. By email dated 10 March 2017, the Complainant wrote to HR via its group email address, advising that they were “a non-binary trans person”. The Complainant referred to the Respondent’s Diversity Policy, and queried what supports were available to them in their employment. The Complainant expressed concern over the wording in the Diversity Policy. The Complainant also explained that as a “non-binary trans person, without my real name on any documents (i.e. all my documents have my birth name), so all work related information has me misnamed and misgendered. I use gender neutral pronouns (they/them) outside of work, but I am aware it takes a while to get used to using them. Could you please help me know how safe it would be for me to be out?”
By email dated 13 March 2017, the Head of HR Strategy & Planning, responded to the Complainant. She assured the Complainant that “we are totally supportive and we will do whatever is needed for you to feel comfortable and included in your work environment.”
The Head of HR Strategy & Planning explained that the Respondent currently did not have any prescribed supports available, but invited the Complainant to engage directly to discuss the Complainant’s requirements. At this time, the Respondent was not aware of any other transgender staff members working within the organisation who required support.
The Head of HR Strategy & Planning, and a HR Business Partner, met with the Complainant on 22 March 2017. Arising from this meeting, on 27 March 2017, the Head of HR Strategy & Planning contacted the Complainant’s team leader and line manager to advise that the Complainant was nonbinary transgender, and requested that they arrange a meeting with the Complainant to discuss their transition in the workplace. The HR Business Partner advised the team leader and the manager that staff should refer to the Complainant using pronouns such as “they” and “them”, as opposed to male or female pronouns. She also advised that the Complainant’s name would be altered on the Respondent’s IT systems and that a new staff card would be issued to the Complainant. The HR Business partner also gave the Complainant a contact name for the Respondent’s uniform provider, so that the Complainant could contact them to discuss their options for a uniform post probation. The HR Business Partner also arranged for the Complainant’s staff card, email address, telephone name, IT name and “Known As” name to be changed on the Respondent’s payroll system.
The Respondent submits that all of these supports confirm there was no less favourable treatment/discrimination of the Complainant on grounds of their gender.
The team leader and manager met with the Complainant on 31 March 2017. During this meeting,
the Complainant discussed their non-binary status and what the impact of their non-binary transgender status meant to them in and outside the workplace. The Complainant advised their team leader and manager that they did not yet feel ready to disclose their status to a group beyond those individuals that they had already spoken to. The Complainant agreed that, in the interest of supporting them that it was appropriate for their manager to share the content of their conversation with three business assistant managers. Following this meeting, the Complainant decided to advise their team at a team meeting of their transgender non-binary status.
In the March / April 2017 the team lead met with the Complainant as part of their monthly probation review. No issues regarding suitability or performance were raised.
On 25 April and 26 April 2017, the Complainant was on sick leave. On the Complainant’s return to work, their team leader advised the Complainant of the terms of the Respondent’s Sickness Absence Policy and the Absence Management Policy, which the Complainant received on commencement of employment. The team leader provided the Complainant with a copy of the Absence Management Policy, and explained how absence was a factor in considering suitability for successfully passing the probation period.
The Complainant was absent from work on sick leave for a further 5 days of sick leave on 2nd May, 3rd May, 6th May, 7th May and 8th May 2017. The Complainant’s Team Leader, met with the Complainant on their return from leave and again alerted the Complainant to the fact that attendance is a factor when reviewing probation.
In July 2017, the Complainant’s team leader advised the Complainant that their probationary period was being extended until 30 September 2017 to allow the Respondent additional time to evaluate the Complainant’s performance and suitability for ongoing employment, given that they had been absent for a number of days during the probationary period. During this meeting, the Complainant’s team lead complimented the Complainant on their improvements to their statistical objectives and demeanour when dealing with customers. The team leader also advised the Complainant that if they had one more instance of absence, they would be required to meet a floor supervisor and again advised the Complainant of the Respondent’s Absent Management Policy.
The Complainant emailed the Head of HR Strategy & Planning on 27 June 2017 in relation to an email that they wished to send to all staff members in the Complainant’s department.
The HR Business Partner responded on behalf of the Head of HR Strategy & Planning on 14 July 2017, asking the Complainant if they wanted to meet to discuss the Complainant’s proposal. The HR Business Partner met with the Complainant on 17 July 2017.
Following that meeting, the HR Business Partner wrote to the Complainant by email requesting that the Complainant draft the proposed email, and advising that the business and HR would review same. The Complainant did not propose a draft email until 18 August 2017. The HR Business Partner responded on 31 August 2017, advising that the business would review its position and respond.
In August 2017, the Complainant received an email congratulating them on receiving a “perfect 10” score on one of their calls. The mail included a statement from a customer, referring to the Complainant, as a female. It stated, “The young woman I spoke to was very good at calming me down and reassuring me”. On receipt of this email, the Complainant approached their team leader, advising that they felt panicked on receiving the email, and asked that they would not receive any further such emails. The team leader spoke to the individual on the Customer Project and requested that no further emails be sent in relation to the Complainant. The team leader also informed the HR Business Partner, and the manager of what had occurred.
The team leader subsequently met with the Complainant, to check in following their receipt of the email. During this meeting she explained that the Respondent would find it difficult to control the words that the public used. The Complainant agreed and said that they understood. The team leader confirmed that they would ensure that the Complainant would not receive any perfect 10 mails, but could not guarantee what a customer might say while on a call with them. The team leader advised that the Complainant could come to her with any related issues in the future.
The team leader again met with the Complainant on 31 August 2017. The Complainant received compliments on their performance, but was again reminded of their obligations under the Absence Management Policy. The report states: “I reminded NAME that reliability, punctuality and suitability are important to the business and this is taken into account when being considered for a fixed term contract.”
The team leader met again with the Complainant on 13 September 2017 for an interim review. She complimented the Complainant on their good statistical results, and praised them for their good performance generally. She also spoke to the Complainant in relation to compliance with the Respondent’s uniform policy, and the Complainant confirmed that they would comply with the uniform requirement in future. The team leader also advised the Complainant that sickness was a determining factor in terms of passing probation. During this meeting, the Complainant alleges that they were informed that “if they did not F**k up completely by the end of the month that they should pass probation completely”. The team leader completely denies that such language was used.
The team leader invited the Complainant to attend a further meeting on 14 September 2017, to advise them that medically certified sick leave is still considered sick leave and would still be a factor in terms of assessing suitability of employment during the probationary period.
The Complainant was absent due to sick leave on 2 to 9 September 2017. Under the Respondent’s Absence Management Policy, the Complainant would have been in scope for a verbal warning, arising from the fact that they had been absent on three occasions in the previous six (6) months.
The team leader offered the Complainant the opportunity to either return to work or remain at home for the remainder of the probationary period. The Complainant chose not to return to work. The Complainant was paid in full for their probationary period and was paid in lieu of accrued but untaken annual leave.
The Respondent submits that the decision to dismiss the Complainant during their probationary period was taken jointly by the relevant management team and the HR team. Full consideration was given to feedback relating to performance and attendance of the Complainant. It was decided that the Complainant was not suitable for ongoing employment due to their absenteeism levels– which the Respondent considered indicative of future attendance. This is an issue routinely taken into account of by the Respondent and relied on by the Respondent as a legitimate reason not to proceed with an offer of permanent employment.
On 4 October 2017, the Complainant was issued with notification that their employment terminated with effect from 18 September 2017, and the Complainant was provided with a statement of employment.
The Respondentsubmits that no issue was taken by the Respondent because the Complainant is a transgender person. The Respondent is entirely supportive of its staff having the freedom to prescribe their gender. The Respondent denies that the Complainant was treated differently in respect of the communication of their transgender status rather the Complainant was met with by Senior Human Resources managers, they were offered the full support of the Respondent and they were asked to participate and offer suggestions/builds on the procedures already in place by the Respondent. The Complainant was invited to participate in the process of ensuring their transgender identity was fully recognised and respected.
The Respondent submits that the Complainant was subject to the same criteria as other staff on the issue of attendance and as there is no evidence whatever that the Complainant’s absences from work were in any way related to their transgender status.
The Respondent contends that the Complainant has not established a prima facie case. The Complainant, according to the Respondent, has not indicated any basis as to why they claim that their dismissal was discriminatory. The Respondent contends that it is evident that the Respondent was always, wholly supportive of the Complainant’s gender status and transition and facilitated them at all times. No specific allegation of discriminatory treatment was raised by the Complainant against the Respondent during their employment which would be suggestive that the rationale for dismissal was discriminatory. The Respondent believes that the Complainant’s assertion of discriminatory dismissal is entirely, uncorroborated and therefore, they cannot shift the burden of proof to the Respondent. The Respondent respectfully submits that they Complainant has failed to overcome the initial test that they are required to satisfy under the EEA, and therefore their complaint must fail.
The Respondent submits that the Complainant has failed to identify an appropriate comparator and other probationary staff both male and female have had their employment terminated by reference to their absenteeism.
The Respondent submits that theComplainant has not referred to any specific allegations of discrimination, or evidence to support their claim that they were dismissed on grounds of gender. The Complainant’s gender or non-binary transgender status was simply not a factor in determining that their employment should terminate. The Respondent puts forward that the Complainant’s absenteeism was not due to any disability disclosed to the Respondent or due to any issues relating to their gender or nonbinary status.
Regarding the Complainant’s assertion that they were not allowed send an email to all staff about their transgender status the Respondent asserts that as a general practice, the Respondent does not permit individual employees to send emails to large numbers of people regarding any protected status, such as gender, sexual orientation, family status. The Respondent’s email is for business use only. In a professional environment, emails dealing with protected status are not considered appropriate.
Regarding the Complainant’s dress the Respondent submits that they did not seek to prevent the Complainant wearing t-shirts with slogans on them. In September, the Complainant was spoken to regarding the issue of them wearing casual clothes, when the dress code required formal wear. The
dress code applies to all employees within the team, regardless of gender or non-binary transgender status; the Complainant accepted the instruction and agreed to comply with the dress code going forward.
Regarding the decision to dismiss the Complainant the Respondent cites their disciplinary policy which provides that employees on probation are not subject to the full disciplinary procedure. Therefore, the Respondent was not required to apply a first written warning to the Complainant, and had the discretion, under the contract of employment to dismiss the Complainant.
In concluding, the Respondent submits that the Complainant’s claims are entirely without merit and should be rejected; the Complainant has not adduced any evidence which would support their argument that they were dismissed because of their gender or non-binary transgender status. The Respondent was entitled to dismiss the Complainant during their probation in circumstances where they had accrued unacceptable levels of absenteeism.
In direct evidence at the hearing, the Respondent stated that the organisation is a champion of diversity and had been very supportive of the Complainant. However, the Complainant did not pass probation and the Complainant had not linked not passing probation with the transgender issue.
Findings and Conclusions:
I have considered this matter carefully.
Section 6 of the Employment Equality Act states:
(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —
( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
( b ) a person who is associated with another person —
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination. ]
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—
( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),
( b) that they are of different civil status] (in this Act referred to as “ the civil status] ground ”),
( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),
( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),
( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),
( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),
( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),
( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),
( i) that one is a member of the Traveller community and the other is not (in this Act referred to as “ the Traveller community ground ”).
It was established in Hannon v. First Direct Logistics Ltd [DEC-e2011 -066]that the gender ground protected transgender persons from discrimination on grounds of sex. Therefore, I am satisfied that the Complainant in this case is covered by the Act.
However, I find that the Complainant has failed to show any link between their gender and their dismissal. Although the dismissal, for a relatively low absence level, may be considered harsh, the Complainant has not provided any evidence to support their contention that their dismissal was related to their gender.
At the hearing the Complainant did reference a former colleague as a comparator, whom it was alleged was treated differently than the Complainant regarding absence levels and discipline, however, the Complainant had scant details of the comparator. The evidence supplied about this comparator was insufficient to make such a comparison valid.
Following the WRC hearing, the Respondent was asked to provide details of probationary staff who had their employment terminated by reference to their absenteeism, as asserted in their submission. The Respondent supplied a written list of staff members who were dismissed during their probation by reference to their absenteeism around the time that the Complainant was dismissed from their employment with the Respondent. This list was confined to dismissals made in the section where the Complainant had been employed. This list was supplied in turn to the Complainant’s representative for comment but no response was forthcoming
Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a Complainant from which discrimination may be inferred, it shall be for the Respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the Complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainant does not discharge the initial probative burden required their case cannot succeed.
It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, and stated that
“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.
The Labour Court continued:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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 category of facts which can be relied upon. All that is required is that they 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.”
In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:
“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
Further, in Valpeters v Melbury Developments Limited  ELR 64 it is stated as follows:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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 category of facts which can be relied upon. All that is required is that they 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.
Having considered all the evidence from the respective parties, and accepting the Complainant’s bona fides, I must find that the claim of discrimination on the grounds alleged lack any direct or indeed indirect factual basis.
No prima facie case exists and accordingly the claim cannot succeed.
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.
The complaint is not well founded.
Workplace Relations Commission Adjudication Officer: Roger McGrath
Absence levels, dismissal, Non-binary transgender