Equal Status Act 2000 to 2008
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-080
Dalton
V
Glynn
(Represented by Mr. Buttenshaw BL instructed by Mr. Woods, Orpen Franks Solicitors)
File No. ES/2003/713
Date of Issue: 31 October 2008
Keywords
Equal Status Act 2000– discrimination, section 3(1) – Gender ground, section 3(2)(a) – Disability ground, section 3(2)(g) – Provision of accommodation, section 6(1)(c) – Victimisation, section 3(2)
1. Delegation under the Equal Status Act 2000
1.1. A complainant referred a claim on 15 July 2003 to the Director of the Equality Tribunal under the Equal Status Act 2000. 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 Act The investigation under section 25 into this matter began on 13 March 2008. An oral hearing as part of the investigation was held 23 July 2008. Final materials were submitted by the respondent on 31 July 2008.
2. Dispute
2.1. The dispute concerns a complaint by Ms. Mary M. Dalton (“the complainant”) that she was discriminated against on the gender and the disability ground contrary to section 6(1)(c) by her then landlord, Mr. John Glynn (“the respondent”) on 16 April 2003. The complainant maintains that the respondent suddenly destroyed her property (a wooden structure that had been in place for over 9 years) in retaliation of a complaint that she had made against another tenant (male). The respondent was notified on 12 June 2003.
3. Case for the complainant
3.1. The complaint refers to what the complainant describes as the culmination of 2 years of harassment and intimidation by two male tenants that the respondent had allegedly incited against the complainant after she had lodged her first complaint with this Tribunal. She asserts that the respondent suddenly destroyed her property, a wooden structure that she had outside her window and stole it (she had to ask to get it back). The complainant maintains that this was an act of retaliation by the respondent because the complainant had complained to the respondent about another tenant on 12 April 2003 (about an alleged assault).
3.2. The complainant maintains that since she lodged her first complaint with this Tribunal in 2001, the respondent had moved a male tenant of his from another building he owned into complainant’s building and incited this male tenant along with another male tenant to harass and intimidate the complainant. This intimidation, the complainant states, resulted in her bringing charges against the said tenant on 12 April 2003.
3.3. The complainant states that the respondent was conspiring with male tenants to intimidate, harass and act violently towards the complainant by rewarding tenants who did so. She also stated that the complainant violated planning permission by allowing a male tenant to keep a workshop on the premises. She further contends that the landlord was singling her out for abuse, for being menaced and rewarding male tenants for carrying out such acts on her.
3.5. The complaint of victimisation also refers to a previous claim relating to rental increases that the complainant had lodged with this Tribunal. While this complaint has subsequently been withdrawn by the complainant, it was still with the Tribunal at the time of the removal of the structure from outside the complainant’s window. The complainant maintains that the respondent removed this structure out of malice and in order to intimidate her because she had lodged a complaint on what she views as discriminatory rent increases.
3.6. While the complainant acknowledges that the wood on the removed wooden structure was seasoned and weathered, she will not accept that it would have ever fallen on anyone. She further asserts that if the complainant was so concerned about health and safety he would not have allowed what she describes an illegal workshop to operate on the premises.
4. Case for the respondent
4.1. The respondent accepts that he did remove the structure outside the complainant’s window. He refutes the fact that he did so late at night; that he was in anyway trying to intimidate the complainant; in support of the named male tenant or that the removal was in anyway linked with the fact that the complainant had an existing complaint with the Tribunal.
4.2. He states that as he was cutting the lawn he noticed that the structure was not very solid looking and that he removed it as a health and safety matter. He stated that he had concerns that the structure could fall on a person.
5. Conclusions of the Equality officer
5.1. In a complaint of discrimination the onus rests with the complainant to establish the facts which he wishes to rely on in making his complaint. It is only when these facts have been established that it is for the respondent to prove contrary.
5.2. The complainant maintains that she has been treated less favourably by the complaint because she is a woman and because she has a number of health concerns.
Having considered the complainant’s evidence I do not find that the removal of the wooden structure constitutes less favourable treatment on the ground of the complainant being a woman and/or because she has a number of health concerns. While it is regrettable that the respondent did not think it would be prudent to communicate with the complainant about his intentions of having the structure removed, it cannot be construed as discrimination on the gender and/or disability ground.
5.3. Victimisation is defined in section 3(2)(j) as less favourable treatment 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.
5.4. The complainant stated that the respondent was getting back at her because she had lodged a complaint to the Gardai about another named tenant. She stated in her statement to Garda Tracy Flood (dated August 2003) that this destruction was intimidation and coercion, designed to deter the complainant from pursuing with those (criminal) charges. This allegation does not constitute victimisation within the meaning of the Equal Status Act. While the complainant had at the time of the incident a complaint lodged with this Tribunal, I have not been presented with any evidence to support the claim that the respondent moved the structure in order to treat the complainant less favourably. The structure was outside the respondent’s property and he had a legitimate concern about the safety implications that the structure imposed. Therefore, having examined all the facts presented to me, the complaint of victimisation fails.
6. Decision
6.1. In accordance with section 25(4) I conclude this investigation and issue the following decision:
The complainant has failed to establish a prima facie case of discrimination on the gender, disability and victimisation grounds. Therefore, the complaint fails and I find in favour of the respondent.
__________
Tara Coogan
Equality Tribunal
31 October 2008