Equal Status Acts 2000 to 2008
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-082
Dalton
V
Glynn
(Represented by Mr. Buttenshaw BL instructed by Mr. Woods, Orpen Franks Solicitors)
File No. ES/2005/0110
Date of Issue: 3 November 2008
Keywords
Equal Status Acts 2000 to 2004– discrimination, section 3(1)- Harassment, section 11 – Discrimination by association, section 3(1)(b) – Gender ground, section 3(2)(a) – Disability ground, section 3(2)(g) – Victimisation, section 3(2)(j) - Reasonable accommodation, section 4(1) - Provision of accommodation, section 6(1)(c)
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. A complainant referred a claim on 3 May 2005 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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 Acts. The investigation under section 25 into this matter began on 13 March 2008. A hearing was held 23 July 2008. Final materials were submitted by the respondent on 31 July 2008.
2. Dispute
Ms. Mary M. Dalton (“the complainant”) maintains that she was discriminated against by her then landlord, Mr. John Glynn (“the respondent”) on a relentless manner on a number of dates between November 2004 and March 2005 in relation to the water heater in her flat. She maintains that there was ‘Incitement to Hatred’ during the Easter week and a refusal to communicate with the complainant in relation to an ongoing dispute that has severely damaged the complainant’s health.
3. Case for the complainant
3.1. The complainant maintains that the respondent has refused to give the complainant an undertaking of good behaviour so that she could allow him access to her flat. She further stated that the respondent had made appointments to turn up, broken them and arrived suddenly with another person.
3.2. The complainant maintains that the respondent has refused to communicate with her in any way and that he has antagonised other named tenants against the complainant. This has placed her in danger and has made her home environment hostile. This, she maintains, has damaged her health.
3.3. The complainant submits that once when she was making a phone call to the respondent, he told her that he was taping the conversation. He had also, she stated, told her not to use the fax machine.
3.4. The complainant maintains that the respondent has “made the exercise a living libel in prospect” by alleging that the complainant would make false allegations against him if he were to talk to her.
3.5. The complainant also maintains that the respondent has refused to let her use the washing machine while her water heater has been broken.
3.6. The complainant could not recall the exact nature of the incident complained of during Easter week. She recalled that it may have involved tenants living upstairs and involved slamming of doors, stamping and noise. The complainant maintains that this is harassment brought on by the respondent.
3.7. The complainant also submitted a number of victim impact assessment reports to the Tribunal to support her assertion of the damage caused to her health by the respondent.
4. Case for the Respondent
4.1. The respondent refutes any allegation of discrimination, harassment, failure to provide reasonable accommodation and victimisation.
4.2. He admitted that he had indeed told the complainant that he was taping a phone conversation and that he did not want her faxing him all the time. This, he stated, was due to the manner and regularity of the contact made by the complainant.
5. Conclusions of the Equality Officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.2. The complaint of harassment refers to other tenants. Section 11(2) states that:
“A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.
Section 11(3) states:
“It shall be adefence for the responsible person to prove that he or she took steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that person is a member.”
5.3. It is clear from that the complainant, who is a prolific letter writer, had made a number of attempts to communicate with the respondent. It is also clear that the tone of these letters can objectively be viewed as abusive and threatening in manner. While many of these letters refer to the ‘vile and obnoxious behaviour’ of a named tenant I have found no evidence to indicate that the complainant ever made a specific complaint of harassment on the gender and/or disability ground. The complainant submitted a number of impact assessment reports to the hearing which state what the complainant had told the clinical psychologist about the situation as well as a signed witness statement from her then named neighbour. Both refer to abusive and threatening behaviour the investigation into which goes beyond the scope of this Tribunal. However, harassment under the Equal Status Acts has a meaning that is more specific than its colloquial use. Section 11(5)(a) of the Acts defines harassment as:
(i) “Any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating and intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
I have heard no evidence to suggest that any of the alleged behaviour was in any way related to gender or disability.
5.4. While the complainant has made some reference to the fact that a named tenant had used abusive language towards her, she has made it clear to the respondent that this took place during an alleged assault. She also makes it clear that this assault was reported to the Gardai and that they were looking into the alleged assault.
5.5. Reasonable accommodation requirements arise when, in this instance, a provider of accommodation becomes aware of the fact that the person availing of the accommodation is unable to do so or that it is unduly difficult for her to do so unless specific facilities or services are available to her.
5.6. I have not been presented with any evidence to suggest that the complainant made the respondent aware that, due to a disability, she was unable or that it was unduly difficult for her to live in the flat. The matters that she did complain of to the respondent were not of a nature related to disability but standard tenant-landlord issues. I also note that the complainant engaged in such behaviour could be seen by a reasonable person as frustrating the respondent’s attempts to address any of the above maintenance issues. Therefore, the complaint of failing to provide the complainant with reasonable accommodation fails.
5.7. The complainant maintains that the respondent refused to speak with her and to reply to her letters. Having read a large number of them as part of the investigation I am satisfied that the respondent had other reasons not to reply to them. These reasons are in no way linked with the complainant’s gender and/or her disability.
5.8. I have not been presented with any evidence to suggest victimisation.
5.9. Any allegations of Incitement to Hatred are beyond the jurisdiction of this Tribunal. The same applies to any allegations of personal injury.
6. Decision
In accordance with section 25(4) I conclude my investigation and issue the following decision:
The complainant has failed to establish a prima facie case of discrimination and/or harassment on the gender and/or disability grounds. She has also failed to establish a prima facie case of victimisation. Therefore, her complaint fails.
__________________
Tara Coogan
Equality Officer
3 November 2008