The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
E-mail: info@equalitytribunal.ie
Website: www.equalitytribunal.ie
Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-071
Husband and wife
v.
A Voluntary Housing Association
(Represented by James A. Connolly & Company Solicitors)
File No. ES/2007/0105
Date of Issue: 15 October 2009
Keywords
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1) - Traveller community ground, section 3(2)(i) - Harassment, section 11(1) - Accommodation, section 6(1) and 6(6)
1. Delegation under the Equal Status Acts
1.1. A husband and wife referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 September 2007. 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 on 12 December 2008. A hearing, as part of the investigation, was held in Dublin on 9 July 2009.
2. Dispute
2.1. The dispute concerns a complaint by a husband and wife ("the complainants") that they were treated less favourably contrary to section 3(1) and harassed within the meaning of section 11(1) in relation to the disposal of premises and provision of accommodation within the meaning of section 6(1) on the ground of their Traveller identity on 6 August 2007 and thereafter by a voluntary housing association ("the respondent").
3. Case for the complainants
3.1. The complainants, a husband and wife, submitted that on 6 August 2007 and thereafter, the respondent had made the complainants feel like the aggressors in an on-going dispute with a neighbour whom the complainants submitted constantly bullied them. The complainants submitted that they believed that if they, the complainants, had been behaving like their neighbour then the respondent would have taken different action. The complainants submitted that the respondents took an alleged incident involving a neighbour and the complainant's wife more seriously than an incident that involved the same two people 4 days previously. The complainants submitted that on the first day a named neighbour attacked the complainant wife with a slash hook while three men used abusive language towards her. The complainants submitted that the respondent did not carry out proper investigations to determine fault in these incidents. They also submitted that the respondent's allegation that there were no independent witnesses to the first incident is false. It was submitted that the complainants made the respondent aware of such a person. The complainants submitted that they felt it was suspicious that this named witness was not interviewed by the respondent. This is in stark contrast, the complainants submitted, to the respondent's action that took place after the second incident.
3.2. The complainants submitted that as soon as the second incident occurred the respondent rang the complainant husband and warned him to 'cop himself on'. The complainants submitted that they believe that the second incident involving the two women was taken more seriously than the first incident because the respondent wanted to evict the couple because they are members of the Traveller community.
3.3. The complainant husband submitted that this is the first time that he had felt discriminated against because of his Traveller status. He submitted that the experience had left him feeling very angry and helpless as he believed that he and his young family would be homeless. The complainant submitted that the fact that the respondent did not respond to his ES 1 form further exasperated the feeling of being treated less favourably.
3.4. The complainants submitted that the legal submission made on behalf of the respondent creates a general impression that the complainants are mindless thugs who go around intimidating their neighbours. The complainant husband submitted that he and his wife are both students and strive hard to be productive members of society and resent and refute any allegation that they are "some sort of lowlife".
3.5. The complainants submitted that the respondents continued to side with the other named party involved in the incidents, despite the respondent having prior knowledge of the other party's alleged anti-social behaviour and habits.
3.6. The complainants submitted that they were advised by the estate's permanent caretaker that his superiors intended to issue a 'notice to quit' to the complainants. It was submitted that the caretaker told the complainants that it would be in their best interest to pack up and leave and consequently avoid negative ramifications in terms of not receiving rent allowance or indeed being left homeless. The complainants submitted that the 'notice to quit' was presented to them as a fait accompli and that the caretaker told them that he was powerless to do anything about it. The complainants submitted that to them such action was unprecedented. It was submitted that the complainants requested to meet with the Board and/or make a submission to same but were told by the caretaker that this was impossible.
3.7. The complainants submitted that they are in no doubt that the reason why they were not evicted was because they had the foresight to issue proceedings with the Tribunal
4. Case for the respondent
4.1. The respondent submitted that is has approved status under section 6 of the Housing Miscellaneous Provisions) Act 1992. A letter dated 8 April 1993, from the then Department of Environment and Local Government, was submitted to the investigation.
4.2. It was submitted that section 6(1) of the Equal Status Acts prohibits discrimination in disposing of any estate or interest in premises, in terminating any tenancy or other interest in premises or in providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.
4.3. It was submitted that section 6(6) states that nothing in Sub Section 1 shall be construed as prohibiting a body approved under section 6 of the Housing (Miscellaneous Provisions) Act 1992 from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.
4.4. It was submitted that section 5(1) of the acts prohibits discrimination in relation to disposing of goods and services. Sub section 2 of section 5 states that Sub section 1 does not apply in respect of a service related to a matter of provided for under section 6.
4.5. It was submitted that section 15 of the acts states that nothing in the acts prohibiting discrimination shall be construed as requiring a person to dispose of goods and premises, or to provide services or accommodation or services or amenities related to accommodation, to another person in circumstances which would lead a reasonable person to the belief, on grounds other than discriminatory grounds, that the disposal of goods or premises or the provision of services or accommodation or the services and amenities related to accommodation would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity in the place in which the goods or services are sought or the premises or accommodation are located.
4.6. It was submitted that the respondent is not amenable to a claim of discrimination.
4.7. It was submitted that section 11 of the Acts covers harassment and section 11(2) provides a defence for a provider of goods and service and/or accommodation provided that they did all that is reasonable to prevent the harassment from taking place. It was submitted that the respondent was not clear who the complainants were alleging harassed them. It was submitted that the respondent denies any claim of harassment on the Traveller status ground.
4.8. The respondent submitted that with regards the incidents complained of, namely 6 August and 10 August 2007, refer to an altercation between the complainant wife and a named tenant. It was submitted that as there were no independent witnesses to the first incident, the respondent took the view that as the complainant wife had approached the neighbour instead of the respondent, the complainants bore the major responsibility for the event. It is submitted that this cannot be construed as harassment within the meaning of section 11.
4.9. In relation to the second incident, the respondent submitted that there was a named independent witness. It was submitted that this witness had made an initial report which she subsequently withdrew. It was submitted that this was because the witness had stated that she was afraid of the complainants.
4.10. It was submitted that the second party, the named neighbour, moved out of the estate shortly after the incidents had taken place. It was submitted that she told the caretaker that the reason why she was leaving was because she was afraid of the complainants. The respondent submitted that the named neighbour cannot be accused of harassment nor can the respondent be accused of allowing harassment. It was further submitted that a number of other tenants had stated that they were afraid of the complainants but that they were not willing to sign statements to this effect.
4.11. It was submitted that in view of the fear felt by a number of tenants who could substantiate the respondent's position and the fact that, even if their names were blacked out they would be easily identified, the respondent feels it owes a duty of care to these people and has been unable to persuade them to give evidence.
4.12. It was submitted that section 21 of the Housing (Miscellaneous Provisions) Act 1997 permits an officer of a Housing Authority to give evidence of anti-social behaviour when another person would be deterred by violence, threat or fear from providing evidence. It was further submitted that section 26 of the Freedom of Information Act 1997 permits a body to refuse to furnish a Record containing information given in confidence when its disclosure would be likely to prejudice the giving of further similar information.
4.13. It was submitted that in all the circumstances, the respondent's decision on 11 September 2007 is fully justifiable, particularly in light of section 15 of the acts.
5. Decision 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 complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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. It is agreed that the complainants are both members of the Traveller community. The respondent's caretaker accepted that he knew the complainants were Travellers before and at the time of the alleged incidents. It was not accepted by the respondent that the Board of the respondent would have been similarly informed.
5.3. It was submitted that section 6(6) of the acts exempts local authorities and /or bodies with approved status under section 6 of the Housing (Miscellaneous Provisions) Acts, 1992 from the accommodation provisions of the equal status acts. This, in my view, is an incorrect interpretation. In my reading of section 6(6), using everyday language and looking at the Acts as a whole, it clearly provides local authorities with the right to different treatment - not less favourable treatment - in relation to family size, family status, marital status, age, disability or membership of the Traveller community. While the Equal Status Acts do not prohibit all types of discrimination, it is important to note that this section does not provide local authorities and/or bodies with approved status under the 1992 Housing Act with a carte blanche approach from the ambition and obligations set out in the Equal Status Acts. It does, however, give such bodies discretion to manage their housing lists by providing different treatment based on family size, family status, marital status, disability, age or membership of the Traveller community provided that it does so in a transparent and coherent manner. Section 6(6) is not a defence to matters concerning eviction or disciplinary proceedings concerning accommodation.
5.4. I have not been presented with enough evidence to provide a nexus between membership of the Traveller ground and the alleged less favourable treatment. Having considered the full facts of this case, I find, on the balance or probabilities, that the respondent treated the complainants the same way it would have treated any other couple who were involved in a public altercation with a neighbour. The complainants have not been able to present any evidence to support an argument that a non-Traveller family who were involved in similar altercations would not have received a written notice in similar circumstances.
5.5. Furthermore, I have been presented with no evidence that the complainant was in receipt of less favourable treatment. I appreciate that this in hindered by the fact that the other person involved in the disputed incidents, a non-Traveller, moved out of her house voluntarily soon after the incident. This makes it difficult for the complainants to show a comparator. However, having considered the full facts of the case, I find that the complainants were treated exactly like anyone else living in the estate would have been treated in similar circumstances. It is clear that local authorities and other such bodies do have a duty to manage estates and to deal with anti-social behaviour issues. It should be borne in mind that this duty of care, however, also extends to the complainants. While it is clear that the complainants firmly believed that they were not the guilty party and that the responsibility for these incidents rested entirely with the named neighbour, I am satisfied that the respondent had begun to carry out an investigation of sorts into the incidents. The complainants were unable to show any evidence to the contrary. I note that both parties were heavily relying on the witness statements of family members who, for obvious reasons, cannot be construed as independent witnesses. I note that the complainant husband disputed the named neighbours witness being present at the house at the time of the incident on 6 August. However, I was presented no evidence to the contrary.
5.6. I am also mindful that the complainant lodged this complaint as soon as eviction was mentioned to him, meaning that the respondent had not at that stage been given enough time to carry out a proper and fair investigation. It is crucial to bear in mind that any such investigation must be done in a manner that adheres to the principle of natural justice. Such an investigation, by its very nature, requires time. It is clear that no decision to evict the complainants was made at this time. I was not presented with enough evidence to support an argument that the complainants Traveller status was known to the respondent Board who made a decision to issue the warning to the complainants. Documents issued to the Board, and submitted to the investigation, had nothing on them that may have clearly indicated the complainants' Traveller identity.
5.7. I do accept that the named caretaker spoke with the complainants after the second incident. I also accept that the caretaker had mentioned a notice to quit as a possible outcome for anti-social behaviour. It is unfortunate that the complainants were not given proper information about their rights as tenants and that, as a result of this casual approach, proper procedures are not in place to ensure tenants that they are entitled to a fair hearing and a chance to put their case forward. While I do not agree that service provides should take such a casual approach to a matter which obviously could have a major impact on the complainants circumstances, I am satisfied that this is the manner in which the respondent deals with such matters regardless of the social status of the tenant.
5.8. Furthermore, I am satisfied that the complainants had made the respondent aware that the complainants had an on-going problem with their named neighbour concerning their children. This complaint, however, does not give rise to a complaint of harassment within the meaning of the acts. I have not been presented with any evidence of harassment on the Traveller ground. I do accept that the complainant family had a number of disputes between their neighbour and that toys were broken and words exchanged. I have not been presented with any evidence to support an argument that these words or actions are in any way linked to the complainants' Traveller identity. Furthermore, I find that the respondent did take action when complaints of harassment were formally lodged by the complainants. This argument was supported by the undisputed fact that when the complainant husband approached the respondent about another named person who had used Traveller specific language when addressing the complainants' son, the respondent took immediate action and the discriminatory use of language stopped.
5.9. I am satisfied that the reason why the respondent initiated the disciplinary proceedings against the complainant was in accordance with section 15. That is, the proceedings were initiated because there was an issue concerning anti-social behaviour, not because the complainants are Travellers. This is not to say that this Tribunal is ascribing any disproportionate blame on the complainants, simply just accepting that the complainant wife was involved in these incidents. It is not for this Tribunal to investigate what happened between the complainant wife and her neighbour or who initiated the altercation and it is worth noting that neither side provided compelling evidence on this issue. This Tribunal can only accept, and this was not disputed by either party, that two altercations took place and that the police were called and attended the scene of the first incident. It is also clear from the evidence that the reason why the respondent took more action after the second incident is because the estate was managed by a temporary caretaker while the permanent person was on holiday.
5.10. I am satisfied that the reason why the respondent did not reply to the complainants ES 1 form questions was because they had received independent legal advice. It is regrettable that the respondent did not, knowing that the couple were members of the Traveller community and having some knowledge of the experience and situation of Irish Travellers, take more care in explaining the exact reasons for the disciplinary proceedings.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainants have failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 6(1) on the ground of their membership of the Traveller community. The complainants have failed to establish a prima facie case of harassment contrary to section 11(1). Therefore, the complaint fails.
_________________
Tara Coogan
Equality Officer
15October 2009