Complainant

Respondent

Parties

Valentina  Neri

BC McGettigan Limited

Representatives

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-00072148-001

05/06/2025

The Complainant is a transgender woman who commenced employment with the Respondent in April 2025.

The complaint arises from events occurring between 11 and 12 May 2025 concerning the provision of a work uniform, specifically a jacket which the Complainant understood to be part of a male uniform.

The Complainant referred a complaint to the WRC alleging discrimination in relation to conditions of employment and harassment on the gender ground.

The Respondent denied the allegations and contested the complaint in full.

The Complainant submitted that she was subjected to discrimination and harassment on the gender ground when she was, in her words, “obligated” or “forced” to wear what she considered to be a male jacket despite her identifying as a woman.

She gave evidence that she had worked for approximately one month without being provided with a uniform and had worn her own clothing during that period without issue. On 11 May 2025, she was provided with a jacket and trousers which she believed to be part of a male uniform. She stated that she informed her supervisor that she was in a position to wear the trousers but that she was uncomfortable wearing the jacket. Although attempts were made to locate an alternative jacket, she felt obliged to wear the jacket during her shift. The Complainant said that being forced /  obliged to wear a male jacket caused her distress and amounted to discrimination and harassment on the gender ground.

The Complainant accepted that no discriminatory remarks were made to her during the incident but maintained that the obligation to wear a male jacket constituted discriminatory treatment and harassment.

The Complainant accepted in evidence that the Front Office Supervisor attempted to assist her in resolving the situation and that he sought to locate an alternative jacket. However, she denied that he informed her that she could wear one of the female jackets belonging to front office colleagues which were kept in the back office. This formed a central conflict in the evidence between the parties. In response to a question from the Adjudication Officer, the Complainant accepted that she was aware that female jackets were present in the back office, as she had taken a photograph of one during her shift, which she subsequently submitted to the WRC at the time of referring her complaint.

The Respondent denied that any discrimination or harassment occurred. It submitted that delays in providing uniforms arose due to stock availability and operational issues and that employees awaiting uniforms, which included but was not limited to the Complainant, were permitted to wear their own clothing pending delivery. The Respondent stated that on 11 May 2025 a uniform left for the Complainant was provided to her by the Front Office Supervisor. When the Complainant indicated that she was uncomfortable with the jacket provided, she was informed that she did not have to wear that specific jacket. The Respondent submitted that efforts were made at the time to locate an alternative jacket and that the Complainant was advised that she simply needed to wear a jacket in accordance with the hotel’s uniform policy and could use another available jacket if necessary.

The Respondent further submitted that, on commencement of employment, the Complainant was provided with a copy of the Respondent’s employee handbook, which she acknowledged by signing, and which contained the Respondent’s dignity at work and harassment policies. The Respondent stated that upon receipt of the Complainant’s complaint on 12 May 2025, the HR Department acknowledged the complaint, provided a further copy of the handbook and arranged a grievance meeting. At the grievance meeting held on 14 May 2025, the Complainant was informed of the options available to pursue her complaint, including a formal investigation and mediation between the parties; however, the Complainant did not wish to avail of those options.

The Respondent contended that the incident arose from operational circumstances during a weekend shift when access to uniform stock was limited and maintained that the events were unrelated to the Complainant’s gender identity.

The Respondent called evidence from the Front Office Supervisor who was on duty on 11 May 2025 and who dealt directly with the Complainant regarding the uniform. He gave evidence that he provided the uniform left for the Complainant and that when she indicated she was uncomfortable with the jacket, he informed her that she did not have to wear that particular jacket. He stated that he assisted the Complainant in attempting to locate an alternative jacket and advised her that she could use another jacket belonging to female front office staff which were kept in the back office. He further gave evidence that the instruction received from management was that the Complainant was required to wear a jacket in accordance with uniform standards generally rather than a gender-specific garment. He stated that before the end of his shift he observed the Complainant wearing a jacket and understood that the issue had been resolved.

The Respondent’s position was that this requirement arose because management had only shortly beforehand become aware that the Complainant had not been provided with a uniform and sought to ensure compliance with the hotel’s front office uniform standards once the issue came to attention.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing, and the oral and written submissions made by and on behalf of the parties.

Discrimination for the purposes of this Act

Section 6(1) of 1998 Act provides that discrimination occurs where, on one of the discriminatory grounds, a person is treated less favourably than another is, has been or would be treated. Section 6(2)(a) of the 1998 Act identifies gender as one of the protected grounds. It was not in dispute that the Complainant, as a transgender woman, falls within the protection of the gender ground.

The Burden of Proof

Section 85A of the 1998 Act provides 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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act 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] 12 E.L.R. 201 wherein the Labour Court stated:

“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.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 / DEC-E2002-020 the “primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

that she/he is covered by the relevant discriminatory ground(s)

that she/he has been subjected to specific treatment and

that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he 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 Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn. If the Complainant establishes a prima facie case of discrimination, the burden of proof shifts to the Respondent to rebut the prima facie case. This will require cogent evidence. In accordance with case law cited above to succeed in a complaint of discrimination the Complainant must establish that she comes within one of the discriminatory grounds, namely the gender ground, that she was subjected to specific treatment and that the treatment was less favourable than someone not covered by the discriminatory ground.

Conditions of Employment

The Complainant’s complaint centres on the events of 11 and 12 May 2025 when she was provided with a jacket which she believed to be a male jacket.

For clarity, the Complainant described the situation as being “obligated” or “forced” to wear a male jacket; in this Decision I use the terms “required” or “requiring” solely to describe the alleged workplace instruction and not to characterise the Complainant’s subjective experience.

I accept that the Complainant experienced genuine upset arising from this incident. However, the statutory question is whether the treatment complained of occurred because of her gender identity.

I found the evidence of the Front Office Supervisor to be clear, consistent and credible. The Complainant was afforded an opportunity to cross-examine this witness but chose not to do so, and did not put any questions to him challenging his account. I accept his evidence that when the Complainant raised concerns about the jacket, he informed her that she did not have to wear that particular jacket and assisted her in attempting to locate an alternative. He stated that management guidance was that a jacket be worn in accordance with uniform requirements rather than that a male jacket specifically be worn, and that the Complainant could use another available jacket belonging to female front office staff.

I also considered the Respondent’s written submissions and witness evidence concerning the circumstances in which the Complainant had been wearing her own clothing prior to the events of 11 May 2025. The Respondent’s evidence was that delays had arisen in the provision of uniforms due to difficulties with its external uniform supplier and limited stock availability. Pending receipt of uniforms, employees awaiting allocation of appropriate uniform items, including the Complainant, were permitted to wear their own clothing while continuing to work. The evidence further established that management only became aware on 10 May 2025 that the Complainant had not yet received a uniform and steps were then taken to source suitable uniform items for her next shift. As access to the uniform store was restricted to HR personnel who were not working that weekend, supervisory staff attempted to resolve the issue locally by locating available uniform items within the hotel. I am satisfied that the difficulty which arose on 11 May 2025 occurred in the context of these operational constraints rather than as a result of any decision related to the Complainant’s gender identity.

I also note that the Complainant submitted a photograph taken during the shift showing a female uniform jacket hanging in the back office. The Complainant accepted in evidence that such jackets were present but did not remove one from the hanger or attempt to wear it. I consider this evidence to be consistent with the Respondent’s position that alternative jackets were available and it undermines the assertion that the Complainant was compelled to wear a male jacket.

Having considered the totality of the evidence, I am satisfied that the requirement communicated to the Complainant was that she wear a jacket in accordance with general uniform standards rather than that she wear a gender-specific garment.

The evidence establishes that the incident arose during a weekend shift when HR personnel were unavailable and access to uniform stock was limited. I am satisfied that the issue arose from operational circumstances rather than treatment related to the Complainant’s gender.

No comparator evidence was produced demonstrating that an employee not covered by the gender ground was treated more favourably in materially similar circumstances.

Accordingly, I find that the Complainant has not established primary facts from which discrimination in relation to conditions of employment may be inferred.

Harassment on the Gender Ground

Section 14A of the 1998 Act provides that harassment occurs where an employee is subjected to unwanted conduct related to a discriminatory ground which has the purpose or effect of violating their dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. Such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material occurring in the course of employment.

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of harassment on the gender ground, the Complainant must show that she was subjected to unwanted conduct related to her gender.

The Complainant relies on the distress caused by being required to wear what she perceived to be a male jacket.

Having regard to the evidence, I find that no gender-related remarks were made and that no conduct occurred which targeted the Complainant because she is transgender. The evidence demonstrates that efforts were made by the Front Officer Supervisor to accommodate her concerns, that the requirement communicated concerned compliance with a general uniform standard rather than a gender-specific requirement, and that the Respondent addressed the Complainant’s complaint promptly and offered to investigate the matter through internal procedures.

While I accept that the Complainant subjectively experienced the situation as upsetting, the statutory definition requires conduct related to the protected ground. A subjective perception of offence or hurt, without such a connection, is insufficient to constitute harassment within the meaning of section 14A of the 1998 Act.

I therefore find that no prima facie case of harassment has been established.

Overall Conclusion

The 1998 Act provides important protection against discrimination, including for transgender employees. However, the legislation requires evidence capable of supporting an inference that treatment occurred because of a protected characteristic.

The issue for determination is not whether the Complainant was upset by the events, but whether the statutory test for discrimination or harassment within the meaning of the 1998 Act has been met.

Having carefully considered all of the evidence, I find that the events of 11 and 12 May 2025 arose from an operational difficulty concerning uniform availability rather than discrimination or harassment connected to the Complainant’s gender identity.

The evidence does not disclose facts from which discrimination could reasonably be inferred and alternative non-discriminatory explanations clearly arise on the evidence. I find that the Complainant has not established a prima facie case of discrimination or harassment on the gender ground within the meaning of the 1998 Act. Accordingly, I find that the complaint is not well-founded.

For the reasons set out above, I find that the complaint is not well-founded.