De Burca & Fernandez V Home Locators (Represented by Padraic Lyons, BL, on instructions from Noel Smyth & Partners)
Mr. deBurca & Ms. Fernandez each referred a claim 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.
Summary of the Complainant's case
The complainants have two school-going children. Mr. deBurca contacted the respondent in respect of certain properties for the accommodation of his family and was informed that they had four suitable properties available at the time. Three of these properties became unavailable very quickly but arrangements were made to view the fourth property. On the day the viewing was to take place, 18/12/2002, a message was left on the complainants' phone to the effect that the viewing had been cancelled because the landlord's wife had qualms about having children in the property. The message was as follows: "Hello Colm, [name] from Home Locators here. Bad news in relation to [address]. Unfortunately the landlord's wife isn't really that pushed about having children in the apartment. So I'm really sorry about this. If I can find something else I'll give you a shout at [number]." The complainants did not make any further enquiries in respect of the premises and could not recall any further contact with the respondent. The complainants feel that this withdrawal of service was based on their family status and they described how their lives and the life of the entire family were adversely affected by this.
Summary of the Respondent's Case
Home Locators has been operating in the Dublin property market for twenty years and
currently leases approximately 20% of its properties to families with children. On the day the viewing was to take place, 18/12/2002, the respondent contacted the landlord and spoke to his wife with a view to confirming the appointment. During the conversation it became clear that the accommodation available included one double bedroom and one single bedroom rather than two double bedrooms. The respondent then contacted the complainants to explain their misgivings about the suitability of the premises for the complainants but when they were unavailable a message was left. The respondent accepted that the message played by the complainants at the hearing was left by a member of Home Locators' staff. Mr. deBurca contacted the respondent the following day and the conversation was entirely amicable. The previous lessee of the relevant apartment was a couple with an infant child. The fact that others having the same family status as the complainants had previously been accommodated in this property is inconsistent with the establishment of a prima facie case of discrimination.
Conclusions of the Equality Officer
Prima facie case
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 family status ground),
(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 another person received, or would have received, in similar circumstances, where that person does not have family status or has a different family status.
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.
The complainants are the parents of two children under the age of 18. They therefore
have responsibilities as parents. This satisfies (a) above in respect of both complainants.
Home locators agreed that they had dealt with Mr deBurca in respect of a number of
properties, and at the hearing, the respondent confirmed that the tape message played was made by one of the employees of Home Locators. The effect of the phone message was to cancel the viewing of the property for both complainants. This satisfies (b) above in
respect of both complainants. The words and general tone of the tape message are such that it is clear that the relevant premises is no longer to be considered and the reason given for this is the landlord's wife's qualms about having children in the apartment. Since the message states that if something else can be found contact will be made, this suggests that no further consideration will be given to the complainants for the relevant apartment and that future contact will be made by the respondent if and when something else suitable is found. Therefore the availability of this apartment was being withdrawn from both of the complainants because they had children. As this apartment would have been available to others with whom supposedly the landlord's wife had no qualms in respect of children, I am satisfied that this constitutes less favourable treatment on the family status ground. This satisfies (c) above in respect of both complainants.
Section 6(1) of the Equal Status Act, 2000, states that "A person shall not discriminate
in-......(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or
amenities." I am satisfied that the respondent was providing a service or amenity related to
accommodation and that they ceased to provide that service in respect of the relevant apartment. The reason given in the contemporaneous phone message was that the landlord's wife was not happy about having children in the apartment. The respondent ceased to provide that service on the grounds of the complainants' family status. I find that the complainants have established a prima facie case of discrimination on the family status ground in accordance with Section 3 and Section 6 of the Equal Status Act, 2000 in respect of both complainants.
Rebuttal
The respondent explained that approximately 20% of their business is in respect of leasing accommodation to families with children. They also stated that the previous tenant in the relevant apartment was a couple with one infant child. The respondent suggests that the fact that others having the same family status as the complainants had previously been accommodated in this property is inconsistent with the establishment of a prima facie case of discrimination. However, no evidence was presented that the previous tenants had had the child before leasing the property, nor that it was leased by Home Locators. In any event, by providing services to some members of a category, it does not follow that this means that members of that category cannot be discriminated against. This issue was considered in DEC-S2003-120 as follows:
During the hearing the respondent's representative suggested that since they serve Travellers other than the complainant, they cannot be found to be discriminatory in this case. The fact that Travellers are sometimes served by the respondent, does not, and cannot, in itself defeat the case for discrimination, as the respondent argues. There are different degrees of discrimination, ranging from an outright refusal to serve Travellers in any circumstances, to serving Travellers in some situations but where a doubt or a problem arises, tending to treat them less favourably than a non-Traveller in the same circumstances, or perhaps serving some types of Travellers but not others (e.g. couples but no single males) where the rules are different for non-Travellers.
Evidence that a pub serves Travellers regularly can contribute to a defence by showing that the respondent in question does not practise the absolute forms of discrimination. However, such evidence does not prove that more subtle and pervasive forms of discrimination cannot occur. It may suggest that they are less likely to do so as a general rule, but it is only one of a number of factors which may be relevant in assessing whether discrimination has in fact occurred. In this case the assertion that the respondent serves other Travellers does not amount to a rebuttal of the prima facie case relating to how Mr. Collins was treated. While it is accepted that the message played by the complainants at the hearing was left by a member of staff from Home Locators, it is argued that the reason given in the message was an error arising out of discussions with the landlord's wife in respect of the accommodation available in the premises. No explanation was forthcoming as to why the message was phrased as it was, other than an awareness of the complainants' children and a new awareness of the capacity of the apartment. The respondent was adamant that no instruction was actually received from the landlord or his wife in respect of the unacceptability of children.
The respondent also argued that the premises was too small for the complainants' family
and that therefore no discrimination could arise in the circumstances. In the respondent's
submission it was argued: "The sole basis that it was suggested to the Complainants that
the property in question would not have been suitable was on the grounds that a property
of that size, comprised of one double and one single room, would be too small
accommodate two adults and two children. It is submitted that this cannot constitute
discrimination within the meaning of the 2000 Act. In this regard the Respondent refers
to Equality Officer's decision Number DEC-S2003-40/41, Cassidy and Wesemann -v-
Doherty." The respondent asserts that an implication arising from that decision is that
the size of a letting property is a reasonable and non-discriminatory factor to be taken
into account in making decisions of this kind. In this case, the size of the property was
not the "sole basis" that is was suggested to the complainants that the property may be unsuitable. In fact, the only established basis for the assertion that the property was
unsuitable was because the complainants have children. If the size of the property was
ever discussed with the complainants, it was after the phone message was left which
makes it clear that the property would not be available to them.
This case is easily distinguished from Cassidy and Wesemann on the facts. In that case
the accommodation had no separate kitchen or bathroom. The couple and baby would
have shared Kitchen and bathroom facilities with other tenants in separate units. There
was also evidence of a consistent objective practice to relate the number of tenants to the
size of the accommodation, and a history of attempts over a period to facilitate the
complainants including adapting larger accommodation to suit them. No discriminatory
comments were established at any stage, and the landlord's actions were consistent with
the stated reasons.
While there appears to be no dispute that the premises was originally misrepresented as
having two double bedrooms, the phone message is very explicit in respect of the reason
for not pursuing this apartment for the complainants. The message does not actually say
that the viewing is off although this is clearly implicit. In my view it is also clearly
implicit that the premises is no longer on offer to the complainants as potential tenants.
The message makes no reference to the newly discovered size of the apartment. The fact
that the respondent had the premises recorded as having two double bedrooms also
contradicts their assertion that it is the respondent's normal practice to lease the property
to two people at most, or possibly two adults and a child. It is difficult to reconcile this
assertion in respect of their normal practice with the fact that the respondent believed it to
be a 2 double bedded apartment and only discovered the true size of the apartment during
a phone call to the respondent in respect of the complainants.
In DEC-S2001-018 the Equality Officer considered a refusal of service to a person with a
disability where the disability was referred to in the reason for the refusal, even though
the actual reason may have been different. In his decision the Equality Officer stated:
"It is my view that, when Mr Carney made his decision not to admit them, instead of stating the real reason, he made the excuse that the wheelchair was the problem. This to me is the point where discrimination occurred. In making reference to a physical characteristic, the complainant's wheelchair, I believe that Mr Carney clearly identified the complainant as a member of a category of persons against whom discrimination is prohibited under section 3 of the Equal Status Act. By so doing, I find that Mr Carney treated the complainant less favourably than he would have treated a non-disabled person, that his
remarks were insensitive and inappropriate, and that they constituted less favourable treatment amounting to discrimination under the Equal Status Act.
Conclusion
In the instant case the reason given for the withdrawal of service centred on difficulties
surrounding the accommodation of the complainants' children. The respondent has failed
to provide a reasonable explanation as to why this reason was given to the complainants
and has therefore failed to rebut the prima facie case established. I find that the respondent discriminated against the complainants on the family status ground when they
told the complainants that the landlord's wife was unhappy with having children in the
apartment.
While the respondent in this case maintains that they do not employ discriminatory
policies generally no evidence was presented in support of this. Nothing was presented
to show:
- Their policies in respect of the family status ground, or any of the other groundslisted in the Equal Status Act, 2000.
- That they draw these issues to the attention of landlords in respect of their inability to refuse tenants on discriminatory grounds.
Vicarious Liability
While the message canceling the viewing of the property was left by a member of staff in
Home Locators, S42 provides that anything done by a person in the course of their employment shall be treated as done also by that person's employer. I am satisfied that
Home Locators are vicariously liable for the actions taken by the employee who left the
phone message.
Decision DEC-S2004-030-031
I find that the complainants were discriminated against by the respondent on the basis of
Section 3 and Section 6 of the Equal Status Act, 2000.
Redress
I order the respondent, Home Locators,
- To pay each of the complainants €1000 for the effects of the discrimination.
- To formulate guidelines for its staff and customers setting out how they comply with their statutory obligation not to discriminate. This should also set out any objective reasons that may be taken into account when considering whether properties are suitable.
- To provide training for all staff in the provisions of the Equal Status Act, 2000.
Comment
In this case papers were presented to the Equality Officer in respect of another agency,
not the respondent, which indicated properties where neither children nor Eastern Health
Board tenants were acceptable. These papers were presented in support of the case
generally that families with children face considerable obstacles in their search for
accommodation. Requirements such as these, in respect of certain categories of persons
which are related to the grounds listed in the Equal Status Act, 2000 may be proper for
consideration under Section 13 and Section 44 of that Act.
Bernadette Treanor
Equality Officer
12March 2004