The Equality Tribunal
3 Clonmel Street
Dublin 2
Phone: 353-1-4774100
Fax: 353-1-4774141
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Website:www.equalitytribunal.ie
Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-052
A Traveller
(represented by the Equality Authority)
-v-
A Local Authority
File Ref: ES/2008/183
Date of Issue: 26/11/2010
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(i), Traveller ground -prima facie case - discrimination - discrimination by association - victimisation
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 12 September 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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, 2000-2008. On 25th May 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 16th November, 2010 and both parties were in attendance.
1. Dispute
The dispute concerns a claim by A Traveller (hereafter "the complainant") that he was discriminated against by association, discriminated against, and victimised by A Local Authority (hereafter "the respondent") on the grounds of his status as a member of the Traveller community in terms of Sections 3(2)(i) of the Equal Status Acts, 2000-2008 when they did not provide him with a method of paying his rent other than cash collection. The complainant requested, and was granted, anonymity in this decision, as he is still working at the local authority in question.
2. Summary of the Complainant's Case
2.1 The complainant is an employee of the respondent in this case. At the time of the complaint he lived in Traveller Specific Accommodation which was provided by the respondent. Therefore he was obliged to pay rent to the respondent, his employer. The complainant states that other non-Traveller employees of the respondent were able to have their rent deducted automatically from their wages. However because he lived in Traveller Specific Accommodation, he was not provided with the facility to pay his rent through the payroll system. Instead he was obliged to pay cash on a weekly basis to a rent collector who called to his home. The complainant states that both he and his wife were working at the time and therefore it meant that either they had to stay home from work to pay the rent or they had to travel into town during the working day, to pay the rent at the offices of the local authority. This caused him great inconvenience, as there was no set time for the rent collector to arrive. He submits that it was also dangerous, as they sometimes had to go to a halting site to pay the rent and this was risky for them due to an ongoing feud with residents at that site.
2.2 The complainant submits that this was an issue for him over a considerable period, but in 2005 he raised the issue with the respondent and requested that the rent be deducted via payroll. From 2005 onwards he continued to make these requests but nothing was changed. His legal representative says that the complainant would have accepted any payment method which was not cash based, for example a rent card.
2.3 The complainant says that the issue caused him to get into arrears with his rent, but that anytime he did happen to meet the rent collector, he would pay him for a week or maybe more. He stated that he did try to pay by cheque a few times, but it did not work out because he was absent from work due to sickness and had not been paid. He says that as of today the arrears are fully paid.
2.4 The complainant says that the respondent was aware of his request for an alternative form of payment and yet despite this, he received a threat of a Notice to Quit from the respondent. He says that person who signed this notice, was the same person who had been assigned to deal with his request to change his payment method. Therefore they were deliberately victimising him despite his attempts to resolve the issue. He says that this letter caused his wife great distress and it also meant that they were excluded from the respondent's repair service. As a result they were without electricity for a couple of days on one occasion, until they called for an electrician and paid for it to be fixed themselves.
2.5 The complainant agrees that the respondent now has in place a system for making electronic payments and the door-to-door collection system has now been phased out. However he says that he was never formally made aware of this by the respondent and he only found out from the rent collector in passing.
2.6 The complainant pointed out that he was never looking for the whole system for Travellers to be changed and his request was made exclusively on his own behalf. Therefore he does not see why the respondent had to roll out a whole programme to change all Traveller rent payments. Additionally he points out that this "discrimination by association" has caused him problems, because of a comment made by one of the rent collectors. He submits that on one occasion last year, a rent collector (who was an employee of the respondent) was explaining the new rent payment system to some Travellers at a named halting site and the rent collector told the group that they "could thank X for this". (X being the full name of the complainant). The complainant said the remark was deliberately intended to cause trouble because it was made to a group involved in a feud against him, and because many Travellers would not want the new system of payment.
2.7 The complainant's legal representative referred to an Equality Tribunal case Reilly v HSE ES2007-59 in support of their case. In this case the Equality Officer found that it was discriminatory that Travellers had to travel to a central service in the city centre to have their Social Welfare benefits paid, when non-Travellers could use a local service. The complainant's legal representative reminded the Tribunal that Section 2(3)(b) of Act covers discrimination by inaction as well as by positive action.
"In any proceedings a respondent is presumed, unless the contrary is shown, to fail to do something when....the period expires during which the respondent might reasonable have been expected to do it."
In the present case the complainant points out that, similar to the Reilly case, a reasonable period of time had long elapsed before the respondent resolved the issue. Additionally he points out that he has never been officially informed by the Respondent that his problem is in fact fixed.
3. Summary of the Respondent's Case
3.1 The respondent gave some background to the system with respect to Traveller rent payments. In the mid-1990's, the local authority changed the system of rent payment for all of their tenants, and this involved a move from cash-based payments to electronic payments. At the time, representatives of the Traveller community strongly objected to this change and as a result the system of cash payments was maintained for Travellers only. Therefore the system of weekly rent collections at Traveller Specific Housing continued. This group comprises about 1% of local authority housing in the geographical region. The respondent submitted that the maintenance of this system for such a small number of tenants was very expensive, time-consuming and a health and safety risk for their employees.
3.2 The respondent further submitted that the entire scheme of Traveller housing was different from other local authority tenancies and therefore it was not possible to make a like-for-like comparison. The following distinctions were made, in addition to the different collection method as outlined above:
- the level of Traveller rents were fixed in a different way to non-Travellers. In the instant case, the respondent points out that the complainant was paying a fixed weekly rent of €23 for a 4-bedroom house, whereas a non-Traveller worker would pay a differential rent, based on the level of his/her income and the size of the house/apartment. The respondent submits that in all cases this would be considerably more than the complainant's rent.
- Travellers were entitled to apply for both Traveller Specific- and Standard Housing, while non-Travellers could only apply for standard housing.
- Travellers generally received a high priority status on their housing applications, putting them automatically ahead of other tenants. Additionally their applications were not subject to the points system established by the Scheme of Letting Priorities,
- Traveller Schemes had an on-site caretaker in contrast to all other schemes.
Overall the respondent submitted that at the time of the complaint, the housing system for Travellers was substantially different and considerably more favourable than the schemes available to all other tenants.
3.3 Regarding this specific complaint the respondent employee strenuously denied at the hearing that the complainant raised the issue any earlier than 2008. In defence of this, he pointed to the following evidence:
- A note dated 20/10/2006 on the complainant's file saying that the complainant intended to pay off some of his arrears by cheque. (The respondent submits that if the complainant had been insisting on electronic payments at the time, he would not have volunteered to pay by cheque).
- The local authority's "Plan for 2009-2013" showing the proposed changes to Traveller Housing (which would fulfil the complainant's requirements)
- The respondent employee's own letter dated October 2008 saying that he had already fully conceded the point that the complainant should be able to pay his rent electronically and that he had been working for some time on the systematic changes.
In contrast to the evidence above, the respondent employee pointed out that there was no evidence on their files, nor provided by the complainant, to show that the issue had been raised by the complainant any earlier than 2008.
3.4 The respondent employee submitted that he accepted the complainant's request and agreed from the outset that he should be entitled to pay rent by a means other than cash collection. The complainant's request coincided with the implementation of a large programme which aimed at significantly overhauling the operation of the Traveller Housing Schemes. The respondent intended to eliminate most of the distinctions outlined at 3.2 above, and thus bring the Scheme more in line with standard housing schemes. Part of this programme would result in fixing the specific issue raised by the complainant. The respondent submits that the proposed changes required substantial technical input and he made his request to the IS Department of the local authority. He pointed out that his request was just one of potentially hundreds of requests to the IS Department and therefore resources would have been allocated in line with the priorities of the IS Department. As a result the changes were not implemented immediately upon the complainant's request, but they were actioned within the following 12 months. The respondent considers that this is a reasonable turnaround time for the complaint to be resolved. The changes introduced mean that the system of Traveller letting is now very similar to standard housing and the complainant could therefore pay his rent via the rent card or via deduction from his pay. The respondent submits that the problem was resolved by 2009; however the fix has not actually benefited the complainant, as he left the accommodation for personal reasons in early 2010.
3.5 Regarding the claim that the complainant had been threatened with a notice to quit, the respondent said that the letter sent to the complainant was a standard letter generated when tenants went into arrears. It was not a Notice to Quit, but a warning that the respondent could pursue this particular course of action. However he submitted that in practice they never pursued this action against Traveller tenants under the old Scheme. Additionally the respondent pointed out that in 2003, the complainant was 30 weeks in arrears and this rose steadily to 85 weeks of arrears by 2007 and 3 years of arrears by the time he left the house in 2010. The respondent submits that the complainant made some payments by cheque in 2006, but these cheques bounced. As a result the respondent followed its standard procedure and sent the warning letter. As a related issue, the respondent operates a policy of refusing to carry out repairs for tenants who are substantially in arrears. This was the reason for their refusal to resolve the complainant's electricity problem and they submit that this was not victimisation.
3.6 The respondent employee disagreed that the issue dealt with in Reilly v HSE (above) is similar to this case. He stated that in that case, the change had not been made for 20 years and that was unreasonable. In contrast he submits that he took relatively fast action to resolve the complaint.
3.7 Regarding the allegation that a staff member of the respondent rent collection team had made a remark which was intended to cause trouble for the complainant, the respondent employee who attended the hearing said that he was certain that the staff were very sensitive to Traveller issues and would not have said such a thing.
3.8 Additionally the respondent submitted (in response to the complainant's claim that he had to pay at halting sites), that the rent collectors always went to the house of the complainant and there was no occasion when the complainant would have been obliged to go to a halting site which was dangerous for him.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. 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.
Employee Claim under the Equal Status Acts
4.2 On the matter of direct discrimation, the complainant in this case raised two issues - he claimed that he should have been able to make his rent payments electronically and/or he should have been able to have his rent deducted automatically through the payroll system. I will deal with the latter issue first. The comparator in the latter situation would be other non-Traveller employees of the respondent who had the benefit of a wage deduction at source. I find that the matter of payroll deductions is a matter connected specifically with the complainant's status as an employee, rather than his status as a tenant. The complainant has referred this case under the Equal Status Acts and the respondent therefore has had no opportunity to defend a claim under the Employment Equality Acts. Therefore I am precluded from considering the employment aspect of the claim and have I limited my considerations to the respondent's responsibilities as a landlord and service provider.
Discriminatory treatment
4.3 The complainant has also claimed that he should have been able to pay his rent by some electronic method, in order to avoid the inconvenience of having to wait for the rent collector. This concerns his status as a tenant and falls within the ambit of the Equal Status Acts. The complainant submits that he raised this issue with the respondent in 2005, but it was not resolved until 2009. The respondent submits that the issue was first raised in 2008. Having examined the available information, I find that although the complainant may genuinely have wished for it to be dealt with as far back as 2005, it is normally the case that large organisations tend to require documented requests and all the documented evidence points to the respondent first becoming aware of the complainant's concerns in early 2008. Specifically I note:
- An email from the respondent's equality officer to the complainant in March 2008 saying that she had received an email from the Traveller Housing Unit, to say that they were working on the problem and it would be fixed shortly.
- An email from the respondent HR department in April 2008 to the complainant to say that the Traveller Housing Unit were working with IS to progress the issue.
- A draft copy of the local authority's "Traveller Accommodation Programme 2009-2013", which demonstrates that all matters relating to Traveller tenancies were under review and there was a consultation period from July-September 2008 to consider all matters with the relevant advocacy groups. (The issues for review encompassed the issue raised by the complainant).
At the hearing the respondent submitted that the complainant's request had come at a time when they were planning to make major changes to the provision of Traveller Housing, and as a result, they did not consider his request in isolation. At the time of his request, they were working on the 2009-2013 draft plan for future Traveller tenancies. This draft plan would implement changes affecting all Traveller tenancies. In particular it was decided that an electronic rent card would be introduced and that the door-to-door rent collections would cease. The respondent stated that in the intervening period since the exemption for Travellers was made in the mid-90's, the issue of Health & Safety had come to the fore, and the respondent was concerned about its duty of care towards its own employees who worked as rent collectors. As a result, it was a very high priority for them to ensure that the door-to-door collections would cease. This coincided with the complainant's request for an alternative payment method. In June 2009, the rent card was introduced, meaning that the complainant and others could pay rent electronically. The respondent submitted that by October 2009, it was also possible to have the rent deducted from payroll, as all employees/tenants were on the same differential rent system. The issue to be determined is whether the respondent reacted to the complainant's request within a reasonable period of time. It appears that it took about 18 months for the request to be actioned and the respondent argues that this is reasonable, given the normal system of prioritising projects in any large organisation. I agree with the complainant that it was far from an ideal turnaround time, but I find that it was reasonable in the circumstances, and I would distinguish it from the Reilly v HSE case, because the time period in this case was considerably shorter and more importantly, in this case, the respondent did actually implement the changes. I accept the respondent's argument that, as it was on the cusp of implementing a major change for all Traveller tenants, it would not have been feasible to make a change for one tenant, in advance of the programme rollout. Therefore, I find that while the complainant did raise a prima facie case of discriminatory treatment, the claims have been successfully rebutted by the respondent.
Discrimination by Association
4.4 The complainant has argued that the respondent has discriminated against him by association. He rightly points out that he requested a change on his own behalf as an individual working Traveller, and that he never sought to have the entire system changed. I can accept that if the complainant had taken this case as an employee, it may well have been reasonable to expect his employer to quickly confer on him an individual benefit which was already available to all other employees. However, as I am considering this case under the Equal Status grounds, I find it reasonable for the respondent to have considered the tenancy matter in conjunction with their general tenancy review, particularly considering that the difference in treatment arose specifically as a result of the request by the Traveller community to maintain cash payments. I find therefore that the complainant has not raised a prima facie case of discrimination by association.
Victimisation
4.5 The final issue arising are the claims of victimisation of the complainant by employees of the respondent. The complainant made the following claims of victimisation:
4.5.1 He received a threat of a Notice to Quit, which was signed by the same person who he understood to be responsible for addressing his problem with electronic rent payments. The respondent submitted that this is a standard letter which goes out automatically to all tenants who are in arrears and it would have also been sent to the complainant on many previous occasions, as far back as 2003. The respondent also submitted that it was signed by a junior adminstrative employee, who would sign all such correspondence from the department. The complainant has not denied that he was in arrears and I accept that the Housing department were simply following their normal procedure in this case.
4.5.2 I apply the same reasoning to the complainant's second claim of victimisation, regarding the repairs. The respondent gave credible evidence that it is the normal practice of the respondent of deny the repair service to any tenant who is in substantial arrears. The complainant accepted that the arrears were substantial; however claimed that it was a direct result of not being around to pay the rent collector when he called. However, as a matter of policy, I cannot support the proposition, that a potential claimant before this Tribunal should withhold over 85 weeks of rent in support of their claim here. It is also clear that the respondent gave the complainant the opportunity to pay by cheque, but those attempts failed.
4.5.3 Finally the complainant submits that an employee of the respondent (a rent collector) made a remark to another group of Travellers in June 2009 when they were introducing the new rent card to Travellers. He submits that this remark was deliberately intended to present him in an unfavourable way to other Travellers. I believe that the respondent employee would have been well aware of the sensitive situation between the specific groups, which means that the remark could not have been accidental. The respondent denied that an employee of theirs would make such a remark. I found the complainant's evidence on this point to have been credible and the respondent did not have direct evidence to the contrary available. This incident took place after the complainant had made an equality complaint. Therefore I find that, on this specific point, the complainant has established a prima facie case of victimisation which the respondent has been unable to rebut.
5. Decision
5.1 On the basis of the foregoing, I find that the complainant has not succeeded in his complainant of discrimination or discrimination by association. I find that he has succeeded on one element of his claim of victimisation. The Tribunal takes findings of victimisation very seriously and on this basis I award him €3,000.
______________
Elaine Cassidy,
Equality Officer
26/11/2010