Mr Gordon Cassidy & Ms Nadine Wesemann Represented by Hinkson solicitors, Dublin V Eamonn & Paul Doherty Represented by George Drevar Fottrell & Sons, Solicitors, Dublin
Mr Cassidy and Ms Wesemann referred claims to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the cases to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2. Dispute
2.1. Introduction
This dispute concerns a claim by Mr Cassidy and Ms Wesemann that they were discriminated against by the respondents, contrary to the Equal Status Act 2000, on the grounds of gender and family status in that they were asked to leave their accommodation in the respondent's premises shortly after Ms Wesemann moved in. The respondent does not deny that they were asked to leave, but that it was on grounds other than the complainants' gender and family status.
2.2. Summary of the Complainant's case
The complainants claimed that by being asked to leave, issued with a notice to quit they were discriminated against on the grounds of their gender and family status. They also Cassidy & Wesemann v Eamonn & Paul Doherty claimed that the respondents harassed and victimized them in terms of the Equal Status Act, 2000.
2.3. Summary of the Respondent's Case
The respondents explained that the premises was suitable only for three people and had shared facilities, notably the bathroom. Ms Wesemann had moved in without any reference to the respondents. However, the complainants were still allowed a period to find other accommodation and move out. Despite having made agreements with his landlords, Mr Cassidy failed to honour them.
3. Evidence of the Parties
3.1. Complainants Evidence
Mr Gordon Cassidy, Complainant
- Mr Cassidy took up residence as a tenant at the premises on 3/7/99. His landlord, Mr Doherty, is his brother-in-law, married to Mr Cassidy's sister.
- Mr Cassidy had a verbal contract and took up residence in a room at the rear of the premises. He was provided with a rent book. The other tenants were friends of Mr Dohertys.
- At the end of February 2001 rent was paid to Mr Doherty and recorded in the rent book. The following evening Mr Doherty's brother and co-owner of the premises delivered a letter (a notice to quit) which mentioned that Mr Cassidy had declined to pay rent.
- This was a misunderstanding, since while Mr Cassidy had said he would not pay rent, he had meant that he would not pay rent for the new room until it was refurbished. (Mr Cassidy had requested the front bedroom which had been vacated and refurbished.)
- Mr Cassidy never moved into the front room. This was all because of his partner and child.
- Mr Cassidy was granted a deferral of the notice to quit, because, he maintains, the notice given was insufficient.
- Mr Cassidy felt that he was discriminated against on the gender ground because he was residing in the property with a family and was unmarried.
- He felt he has been victimized because he was constantly getting letters, because work was being done late at night in the premises and because the landlord was constantly entering the premises. This was during a period June to August 2001.
- Mr. Cassidy had had to call the Gardaí in relation to the behaviour of one of the other tenants (name provided).
- Tenants are entitled to peaceful occupation of their accommodation.
Ms Nadine Wesemann, Complainant
- Ms Wesemann took up permanent residence with Mr Cassidy in November 2000. She was pregnant at that time. Her baby was born in January 2001.
- On 25/3/01 both landlords were on the premises and said that they did not want a woman on the premises.
- When she moved into the house she paid part of the bills. The individual units do not have separate supply lines. The bills were left in by the landlord and the tenants divided the amounts between them. They paid the required amounts directly to the service providers while the rent went to Mr Doherty.
- In relation to gender discrimination Ms Wesemann stated that the landlords said that they did not want a woman in the house, and did not want her baby. They wanted a house with 'lads'.
- While she was on maternity leave Mr Doherty came into the house and said things like 'why don't you take her out' referring to the baby. Ms Wesemann considered this inappropriate since it was raining at the time.
- He suggested that they would have to pay more of the heating bill since she was there all day while the other tenants were not. Ms Wesemann stated that the other tenants had the heat on when they (Cassidy and Wesemann) were already asleep in the evenings.
- Ms Wesemann felt that Mr Doherty's question asking who would pay for the child guard for the stairs amounted to victimization as did his having repair work done in the house between 3pm and 8pm.
- Ms Wesemann pointed out that while she was on maternity leave she was not working and could not therefore afford to move out. This would have involved finding a crèche and a new home. She estimated that this would have cost around €3000.
3.2. Respondent's evidence
Mr Eamonn Doherty, Respondent
- The premises in question has two bedrooms upstairs, and the old sitting room downstairs at the front is also a bedroom. The bathroom, kitchen and living room were shared by all tenants. There is one person per room.
- Mr Doherty owned the premises since 1991, but he sold half to his brother in 1995.
They have always had three tenants. - The rooms had occasionally been rented to couples and there had been no problem once the bills were shared appropriately.
- Mr. Cassidy moved into the back bedroom at £55 per week payable in advance. He was only asked to respect the other tenants and to share the bills equally.
- The initial agreement with Mr Cassidy was that he should pay his rent in advance. However, when he expressed difficulties with this in summer 2000 he was allowed to pay in arrears. This was a facility only given to Mr. Cassidy and only because he had requested it. Mr Doherty expected that Mr. Cassidy would return to work, that he would inform him that he was working and could pay normally i.e. in advance.
- Another tenant told Mr Doherty in September 2000 that Ms Wesemann was there, but he was never approached formally about MS Wesemann moving in. When he asked why she had moved in Mr. Cassidy told him they had nowhere to go. Mr Doherty gave them until the end of the year to leave
- He was aware of her pregnancy. He did not seek any additional rent.
- The baby was born in 2001 and another tenant (name provided) moved out. Mr. Cassidy asked if he could move into that tenant's room as it was larger. Mr Doherty agreed to do up the front room, move Mr. Cassidy in at a rent of €100 per week and then work on the room downstairs.
- He redecorated the room, including insulation, lights, carpet, and sockets. When it was nearly completed Mr. Cassidy asked for wardrobe space. Mr Doherty replied that he had to see how the money goes and asked if Mr. Cassidy could use the old wardrobes in the meantime. Mr. Cassidy lost his temper and said that he would not pay rent until new wardrobes were provided. This was the last Monday in February 2001.
- Mr Doherty stated that he felt at this point that he had been doing his best only to be threatened with rent not being paid.
- There had been no previous difficulties with rent, apart from the payment provisions made.
- Mr. Cassidy was not getting on with the other tenants, he was a gardener and frequently entered the premises in very mucky boots, and he washed his dog in the communal shower.
- There were constant rows between Mr. Cassidy and the other tenants, and constant difficulties and rows between Mr Cassidy and himself.
- Rent was normally paid every Saturday. When asked for the rent Mr. Cassidy would reply "I'm thinking of paying it".
- When asked why he attempted to terminate Mr. Cassidy's tenancy, Mr Doherty said he had just had enough of him. He was sick of him and had tried to do his best.
- Mr. Cassidy had been served a notice to quit dated 1/3/01 with 31/3/01 as the final date to quit. Mr Doherty was expecting him to go and that Ms Wesemann and the baby would leave also. On 25/3/01 Mr. Cassidy asked why he and Ms Wesemann could not stay in the back room. Mr Doherty explained that it was unsuitable and too small. At end of March 01 Mr. Cassidy asked for more time. During this period there was contact between the parties as work was going on in the room downstairs.
The landlords agreed to extra time. One condition attached to this was that Mr. Cassidy should pay his rent in advance. - Mr. Cassidy did not pay the rent in advance and he did not move out at the end of July.
- A civil summons (ejectment proceedings) was issued on 25 July 01 for a hearing date of 20/9/01. The landlords had previously booked holidays for this date and could not attend. Mr Cassidy's father, (Mr Doherty's father-in-law), asked Mr Doherty for a special arrangement for Mr Cassidy.
- In response Mr Doherty agreed to meet Mr. Cassidy in a pub. They discussed what time Mr. Cassidy needed and offered to allow him to stay until the end of January 2002.
- The complainant's representative produced a Reference from Mr. Doherty attesting to the fact that Mr. Cassidy was an acceptable tenant. He asked Mr Doherty to reconcile this with his evidence as to the difficulties that Mr. Cassidy caused. Mr Doherty responded that he did not want to get in the way of Mr. Cassidy finding alternative accommodation.
- It was suggested that the old wardrobe was mouldy, that the complainants offered to buy their own wardrobe after the event, that the cost of a wardrobe was minimal in comparison with the cost of the work being undertaken, and that the wardrobe issue was only a pretext for not having the complainants there. Mr Doherty replied that it may seem unreasonable to say he could not afford it but he did not want to run out of money until the major work was complete. Mr Doherty asked why they could not continue to use the old one for a month.
- Mr Doherty was aware that Mr. Cassidy had had to call the Gardaí in relation to the other tenant. Mr. Cassidy, however, occasionally refused to allow people into the house, and caused difficulties also in relation to the phone and threatening behaviour.
- Mr Doherty had lent Mr. Cassidy a car and had given him money for a car. He had generally tried to help him out.
- Other tenants were permitted to move partners into the premises sharing their room. These arrangements were relatively short term and temporary before the couples moved to suitable accommodation.
- Mr Doherty denies that he said that he did not want women in the premises. He denies also that he made any such references to babies.
Mr. Paul Doherty, respondent
- Other tenants were being driven out by Mr. Cassidy's behaviour.
- He was concerned on hearing his brother's report that Mr. Cassidy had threatened not to pay his rent.
- When he went to speak to Mr. Cassidy he was very aggressive, so he gave Mr. Cassidy the letter (notice to quit) even though it was slightly incorrect in relation to the payment of rent.
- However, rent was not the issue at the end of the day. There had been too many difficulties arising with the tenancy.
Mr Barrett, witness for the respondents
- Mr Barrett was a tenant at the premises from April 1995 until May 2000.
- the first week when Mr. Cassidy moved in went well, but from then on things deteriorated until he, Mr Barrett had to leave.
- Mr. Cassidy's general behaviour was unacceptable, he was unco-operative and inconsiderate.
- Mr. Cassidy was allowed to have a dog on the understanding that it would not affect the other tenants. It did however and also affected the neighbours.
- Mr Barrett felt that the dog led to confrontational situations over things which should not be an issue.
- The dog was initially kept in the garden but neighbours complained. The dog was then moved to the sittingroom, but this led to situations among the tenants. The dog ultimately was kept in Mr. Cassidy's bedroom. These moves show that at least Mr. Cassidy was attempting to address the complaints made.
- When Mr Barrett found the dog shampoo in the shower that they all had to share he was upset.
- After the third month of Mr. Cassidy's tenancy money became a big issue with him in relation to the bills and this led to confrontations.
- At one point Mr. Cassidy was working as a gardener and he would enter the house with his work boots still on leaving muck throughout the house and on the stairs. This caused problems in relation to the shared facilities including the bathroom.
- The tenants raised the concerns with the landlord as they arose although Mr Barrett pointed out that all along he felt that as Mr. Cassidy was related to the landlord he would always be given preference.
- Mr Barrett is a friend of Mr Dohertys.
- In response to a question about the condition of the house and his room, Mr Barrett stated that the house was clean though the windows were draughty. These were to be fixed as part of the changes to be made.
- The money for the bills was left on the mantelpiece and whoever was going to the post-office would pay them.
- Mr Barrett purchased a house on leaving the tenancy. His partner did not stay there with him full time before he left.
4. Matters for consideration
The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) 3 (1)(b), 3 (2)(a), 3 (2)(c) and 3(2)(j)of the Equal Status Act 2000 in terms of Section 6 (1) and 11(5) of that Act.
3. -- (1) For the purposes of this Act, discrimination shall be taken to occur where --
(a) on any of the grounds specified in subsection (2) (in this Act referred to as "the discriminatory grounds") which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated,
(b) (i) a person who is associated with another person is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated, and
(ii) similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,
.
Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ...
are ...
(a) that one is male and the other is not (the "gender ground"),... ...
(c) that one has family status and the other one does not or that one
has a different family status from the other (the "family status ground"),
...
Victimisation , in terms of the Equal Status Act, 2000, is included as a ground and is defined in section 3(2)(j), as follows:
"... ...(j) that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the "victimisation ground")".
Section 6(1) of the Equal Status Act, 2000 is as follows:
"6. -- (1) A person shall not discriminate in --
(a) disposing of any estate or interest in premises,
(b) terminating any tenancy or other interest in premises, or
(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities"
Section 11(5) is as follows:
"(5) Harassment takes place where a person subjects another person ("the victim") to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating to him or her."
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of the discriminatory ground (in this case the gender and the family status grounds).
(b) Evidence of specific treatment of the complainants by the respondent
(c) Evidence that the treatment received by the complainants was less favourable than the treatment someone of a different gender, or who has no family status, or who has a different family status received, or would have received, in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
5. Conclusions of the Equality Officer
5.1. Prima Facie Case
Admissability
According to Mr Doherty the request to leave was first mentioned to Mr. Cassidy around September 2000. Discrimination on the grounds of gender or family status by a service provider was not made illegal until October 2000 with the implementation of the Equal Status Act, 2000. While Mr. Cassidy did not contest this mention of September 2000 Ms Wesemann stated that she moved into the premises in November 2000 and around that time she discussed the payment of a contribution to the shared bills. Apparently, any sightings of Ms Wesemann in the house before November relate to short stay-overs. On the grounds of her gender Ms Wesemann differed from all of the other tenants in the house at the time. She was also pregnant and therefore had family status while none of the other tenants had family status in their own right. Since it was unlikely that Mr. Cassidy would have accepted without comment a request for the couple to leave if Ms Wesemann was not already living there, I find on the balance of probabilities that the first request to leave the house was made after Ms Wesemann moved in, that is after November 2000 and is therefore within the scope of the Equal Status Act, 2000.
Applicability of the grounds
Ms Wesemann differed from all of the other residents by her gender and, since she was also pregnant when she moved in, she also had family status. Mr Cassidy claims that he was treated less favourably by the respondent because of his gender. Since Mr. Cassidyadduced no evidence to show, nor did he suggest, that Mr Doherty treats women more favourably, Mr Cassidy's claim on the gender ground appears to be on the basis of his association with Ms Wesemann. Mr. Cassidy attained family status on the birth of his baby. Prior to that date he had family status by association with his partner Ms Wesemann while she was pregnant. On that basis both the gender and family status grounds apply to Mr Cassidy Instances of specific treatment of the complainants by the respondent The incidents that the complainants allege were discriminatory occurred on 25/3/01 and previously on 28/2/01-1/3/01.
On 25/3/01 it is alleged that during a conversation the respondents said something to the effect that they did not want a woman or a baby on the premises, that it was a 'lads' house. The respondents deny this. Therefore the situation is that two people maintain that it was said while two maintain that it was not.
On 28/2/01 the complainants paid their rent and this was noted in the rent book. On 1/3/01 a notice to quit was issued to Mr. Cassidy. The covering letter stated that the Mr. Cassidy had "declined to discharge the rent due in respect of [his] occupation of part of the premises at....". The Notice to Quit itself was addressed to:
'Gordon Cassidy, Tenant
And all other persons in occupation'
in that part which he held as a monthly tenant. The Notice specifically mentions Mr. Cassidy and the reference to all other persons, in occupation of the same part of the house as Mr. Cassidy, appears to be a reference to Ms Wesemann and the couple's baby. This is evidence of specific treatment of both complainants. Less favourable treatment In relation to 6(c) above it is now necessary to assess whether the treatment received by the complainants was discriminatory on the grounds cited. The respondent admits that after Ms Wesemann's arrival he told the complainants that they should be out of the house by the end of the year (2000). Therefore the apparent trigger for asking them to leave was her arrival. It is clear from the evidence presented that the landlords felt that the ongoing difficulties experienced with Mr. Cassidy as a tenant were considerable. However, he was not issued with a notice to quit while he lived alone. The complainants' baby was born in January 2001. At the end of February the couple were issued with a Notice to Quit the premises Since the request to leave was issued after Ms Wesemann moved in and the notice to Quit was issued the month after the birth of her baby, I am satisfied that an overall inference of discrimination on the gender and family status grounds arises, based on these actions taken by the respondents.
I find that the complainants have established a prima-facie case of discrimination on the gender and family status grounds.
5.2. Respondent's Rebuttal
Request to leave & Notice to Quit
In their evidence, the respondents pointed out that the house normally accommodates three people, and so far these have been male. A number of facilities in the house are shared, including particularly the bathroom. On a number of occasions the respondents have allowed tenants to move their partners in for a period. One example given was where the couple was awaiting the readiness of new accommodation. This appears to have been by arrangement. Mr Cassidy did not approach the respondents to make any such arrangements. However when they approached him, Mr Cassidy said that they had nowhere else to go. They were asked to leave by the end of the year. This appears to be in keeping with the landlord's normal practice, and not less favourable treatment. This request to leave was ignored as the complainants were still in situ after the New Year. Their baby was born in January and negotiations were entered into about the possibility of moving from the back room to the larger front room which was redecorated by that time. A discussion of wardrobes and the continued use of those already available appears to have become heated and confused. Mr Cassidy made a comment about not paying rent in the future. During the hearing Mr Cassidy maintained that this was a reference to the renting of the new room and not his accommodation at that time. Mr Eamonn Doherty perceived this as a threat not to pay in future at all. When Mr Paul Doherty heard of this discussion he suggested that it was time to take action. He contacted his solicitor and called to the complainants to discuss the matter. Again the discussion was not congenial. Mr Doherty stated that Mr Cassidy's manner was very aggressive and so he gave him the Notice to Quit even though it was slightly incorrect. It was incorrect since it referred to the future non-payment of rent although the rent for that month had just been paid.
The respondents had informed the complainants that they were required to move since the accommodation was unsuitable. It appears to have been entirely out of the ordinary, and in the complainants' favour, that the respondent entered into negotiations at all in respect of the larger front room for them as a family. Mr Cassidy failed to avail of this opportunity because of a dispute over wardrobes. In the light of all of the previous difficulties caused by Mr Cassidy, exacerbated by the difficulties encountered while trying to discuss the issues with him, I am satisfied that the respondent's reason for the eviction was as stated. That is, they had tried unsuccessfully to come to an arrangement with him and had simply had enough.
I am satisfied that on the balance of probabilities the request to leave and the Notice to Quit were issued in accordance with the normal practice of allowing couples to stay short term by arrangement, even though no arrangements had been attempted on behalf of Ms Wesemann. This normal practice of allowing couples to stay short term is a facilitation which has been granted in spite of the size of the premises. I find therefore that the requests were not based on either of the discriminatory grounds alleged but that it was because it was normal practice and because of Mr Cassidy's conduct and manner.
Harassment
On 23/3/01, during the period of notice relating to the eviction notice, another discussion took place and as mentioned above it is alleged that some discriminatory remarks were made. Unwelcome remarks which are based on a discriminatory ground constitute harassment in accordance with section 11 (5), quoted above.
It seems to me entirely possible that references to the presence of Ms Wesemann and her baby were made during the various discussions throughout the period as well as that on 23/3/01. However, it is not clear if these would have been simply because of her gender and family status, i.e. based on discriminatory grounds, or whether they would have been because she had moved in without arrangement and because her presence in addition to the arrival of her baby had increased the population of a house suitable for three people by 66%. Since there is a clear dispute as to what was said, it is not possible for me to arrive at a conclusion as to whether such comments were in fact made, and if so, whether or not they "could reasonably be regarded as offensive, humiliating or intimidating" to the complainants. Since I have not been satisfied on the balance of probabilities that such comments, if made, were so perceived, I find that the respondents did not harass the complainants in terms of section 11(5).
Subsequently agreement was reached that Mr Cassidy and his family could remain on the basis of rent being paid in advance1, provided he moved out by July. Mr Cassidy did not honour his agreement as he did not pay his rent in advance and did not move out as agreed. Mr Cassidy's father, Mr Eamonn Doherty's father-in-law, asked Mr Eamonn Doherty later in the year to make further provision for Mr Cassidy, which he did.
1 The facility to pay after the relevant period rather than in advance had been agreed to by the respondents who had expected it to last for a short period only.
Victimisation
At the hearing, Ms Wesemann stated that Mr Eamonn Doherty's question about who would pay for the required child guard for the stairs that would be needed amounted to victimisation. She also suggested that the fact that repair work would be done between 3pm and 8pm in the house was victimisation. Mr Cassidy mentioned that they were constantly getting letters and that the respondents were entering the premises. When asked to clarify this Mr Cassidy confirmed that they only entered the shared areas.
The letters sent were as follows:
Notice to Quit, and covering letter, 1/3/01
Response to phone call from Mr. Cassidy 12/3/01
Granting of extension of time 19/4/01
Civil Summons, eviction notice, and covering letter 30/7/01
Notice of work to be carried out on Mr Cassidy's room 3/8/01
Notice of timing of work 8/8/01
Victimisation is defined in Section 3(2)(j) of the Equal Status Act, 2000, and quoted above. None of the instances of alleged victimization appear to be direct reprisals on the complainants for any actions taken by the complainants in terms of sub-section 3 (2)(j).
I am satisfied that
The question about the cost of the child guard is a reasonable one.
It is not extraordinary that repair work should be carried out during the hours specified.
The number and content of letters produced to me are reasonable given the level of communication with the complainants.
The respondents were entitled to enter the premises in the manner described.
I find therefore that these actions of the respondent do not constitute discrimination on the victimization ground in terms of section 3(2)(j). Cassidy & Wesemann v Eamonn & Paul Doherty
6. Decision DEC-S2003-40
I find that the complainant, Mr Cassidy, was not discriminated against, victimized or harassed on either the gender ground or the family status ground in accordance with section 3 of the Equal Status Act, 2000, in terms of Sections 6 or 11
7. Decision DEC-S2003-41
I find that the complainant, MsWesemann, was not discriminated against, victimized or harassed on either the gender ground or the family status ground in accordance with section 3 of the Equal Status Act, 2000, in terms of Sections 6 or 11
Bernadette Treanor
Equality Officer
21 May 2003