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-S2011-031
Ms Margaret Cash
-v-
Murphy Property & Finance Ltd.
File Refs: ES/2009/092
Date of Issue: 29/07/2011
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(i), Traveller ground -discrimination -
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 24 August 2009 under the Equal Status Acts, 2000-2008. In accordance with his 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 19th April 2011 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 1 June 2011 and both parties were in attendance.
1. 0 Dispute
The dispute concerns a claim by Ms Margaret Cash that she was discriminated against by Murphy Property Management (hereafter "the respondent") on the grounds of race and her status as a member of the Traveller community in terms of Sections 3(2)(h) and 3(2)(i) of the Equal Status Acts, 2000-2008. The complainant submits that the respondent refused to rent her a house because she is a member of the Traveller Community.
2.0 Complainant's case
2.1 The complainant was living in rented accommodation in Tallaght and decided to move to the country to be nearer her family. Using the internet, she found a house she was interested in Baltinglass, Co Wicklow. She called the respondent, a real estate agency located in Blessington, and made enquiries about the property. She was interested in it, so she gave her name and address to the respondent and they arranged a viewing for that same evening. About an hour later, the respondent rang her back and told her she did not need to view the house and that he had reason to believe that she had been in trouble before. She asked him what he meant by this and where he got this information. He told her he got it from various organisations and he did not explain any further.
2.2 The complainant called the respondent again, to pursue the matter further. The respondent told her that if she got a Garda clearance certificate, there would not be a problem renting the property. The complainant was familiar with the certificate, as she had been issued one some years ago, when she worked in primary healthcare. She went to her local Garda station and spoke to the Sargent there, who told her that she did not need the certificate to rent a house. He said that they were only for specific types of employment (mainly working with children or senior citizens) and that he never heard of anyone being asked for a Garda clearance certificate to rent a house. She submits that it was her understanding therefore that it was not possible to get the certificate in question.
2.3 The complainant submits that when she tried to follow up again with the respondent's Blessington office, she was told to contact Baltinglass, without explanation. She also tried to have her local TD follow up on her behalf and was told by him, that no response was received from the respondent.
2.4 The complainant submits that when the respondent found out that she was a Traveller, he decided not to rent her the house. She also believes that he had access to information that he was not entitled to have.
3.0 Case for the respondent
3.1 The respondent runs a real estate agency in West Wicklow which has offices located in Blessington and Baltinglass, and has been operating since 1984. The respondent submits that it rents a significant number of houses to members of the Traveller community and would be known for this.
3.2 The respondent described his procedure when taking enquiries regarding a rental. He begins by asking the name and address of the potential client and he also asks how many occupiers there are and whether the client is availing of the Rent Supplement Scheme. The purpose of this is to immediately filter the enquiry, as some landlords specifically refuse to take tenants who are on Rent Supplement. In the instant case, the landlord did accept Rent Supplement and so he arranged to meet the complainant at the property that evening.
3.3 After speaking with the complainant, the respondent would next have made enquiries regarding the complainant. He submits that this is standard procedure for callers outside the immediate neighbourhood, as they would not be known to him personally. He would have looked up the complainant's address on Google and when he was unable to find it, he would have made informal contact with a series of employees of different public sector organisations and sporting organisations throughout the region. This network of contacts provide him with unofficial information about any potential client who is not known to him. The purpose of this background check is to throw up any potential red flags. If he does come across something which is of concern to him, then he advises the potential renter and offers them the opportunity to overcome this concern, for example by getting a Garda clearance certificate or in some cases by paying a higher deposit or getting extra references. The respondent submitted that this is standard procedure for him, and he does it in all cases, in order to ensure that he is giving the best service to his client, the landlord.
3.4 In the instant case, he was told by one of his contacts that this (the complainant's address) was "an area to be concerned about". He submits that at this point, he knew nothing about the complainant personally - this was just an early preliminary check. He was aware the complainant was travelling from Dublin that day and he did not want her to have an unnecessary trip, so he called her and advised her that there might be a problem and she should not come down to view the house unless she was sure that she could address any concerns which the landlord might have.
3.5 The landlord submits that he would ask for a Garda clearance certificate in any case where a potential red flag was raised - ie: it has nothing to do with the complainant being a member of the Traveller community. He additionally pointed out during the oral hearing that he was well aware that the complainant was a Traveller, based on their phone conversation alone. Therefore if he had wanted to discriminate against her, he could have made an excuse at the outset and not set up the appointment to view the house.
3.6 Regarding the complainant's assertion that the respondent was avoiding her, the respondent stated that he has two offices and is regularly travelling between the two, so callers are often asked to contact the other office. He also denies that he avoided any correspondence from the complainant's local TD and submitted that he went back over the entire correspondence log for the period in question and did not find any unanswered letters or phone calls.
3.7 The respondent strongly denies this claim of discrimination and estimates that approximately 12% of its business comes from Travellers. He submitted that it would not be in his interest to discriminate against any minorities, as they are a major part of his letting business. He submitted that he did not prevent the complainant from accessing a service; he merely warned her that if she did not fulfill certain criteria, it would not be worthwhile to view the house. He submitted that she could have got the Garda certificate if she wanted to pursue the matter further.
4.0 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.
4.2 The complainant has claimed that she was effectively prevented from accessing a service by the respondent who put up an obstacle which she could not overcome. The respondent agreed that he did put an extra condition in place for her, but stated that he does this in all cases where he anticipates the landlord may have concerns about the potential tenant. The respondent submitted that his practice in fact helps potential tenants who may not have an ideal background, in that it offers them an opportunity to overcome this background. Therefore he submits that there can be no question of discrimination, as the complainant was not in fact prevented from accessing a service. However when I questioned the respondent during the oral hearing, he stated that in practice, almost no-one ever provides him with the requested Garda clearance certificate. He simply never hears from them again and he assumes that they were unable to get the certificate due to their personal record. The complainant on the other hand stated that she was told by the Garda Sargent that this was not the purpose of the certificate and she understood that the Sargent was not prepared to research her background for this purpose alone. I accept the complainant's evidence on this point and I find that it is a very significant obstacle to overcome in order to rent a house. Even on the respondent's own evidence, it is clear that in practice, it acts as an almost complete deterrent to potential tenants and the complainant's case is no different. In summary therefore I find that, whether intentional or not, the complainant was in fact prevented from accessing the service which she sought. The question of whether the refusal was discriminatory or not, remains.
4.3 The complainant has stated that when the respondent found out that she was a Traveller, he decided to prevent her from viewing the house. The respondent on the other hand claims he knew immediately from the first phone call that she was a Traveller, based on her accent and name. I accept the respondent's assertion on this point, as he very clearly has long experience in his industry and detailed knowledge of his customers and potential customers. It follows therefore that I believe his assertion that he does not automatically discriminate against all Travellers. However in this particular case he looked up the complainant's address on Google and did not find it. It is logical to assume therefore, (given the respondent's experience as a real estate agent), that he came to the conclusion, that the absence of a street address meant that the complainant lived on a halting site. (This fact was confirmed by the complainant during the oral hearing). He then proceeded to call his informal contacts to enquire further about the address and was told that this was "an area to be concerned about". During the oral hearing, I asked the respondent if he probed deeper at the time and he said no. He said that he was receiving unofficial information from a personal connection and he would not have asked further questions. He accepted the statement as it was given and trusted his sources. I consider this approach to be problematic, as the meaning of the statement (upon which he acted) is entirely unknown. Leaving aside the entirely inappropriate method of getting the information, the statement itself could have meant any number of things, including that the complainant specifically had a poor history as a tenant, which could have been relevant. However it is also possible that the intention of the respondent's contact person was entirely discriminatory - that he/she assumed that because the address was a Traveller halting site, it must therefore be associated with trouble.
4.4 The respondent has stated that he has nothing against Travellers and it is his job as a good estate agent to properly vet potential tenants on behalf of his clients. However notwithstanding this, he took action in this case on the basis of a statement which was potentially discriminatory against Travellers. It follows therefore that this action was potentially discriminatory. Therefore I find that the complainant has raised an inference of discrimination.
4.5 In considering whether the respondent has rebutted this inference of discrimination, I have noted a number of points:
- In order to avoid acting on potentially discriminatory information, the respondent could have looked more closely into the matter and satisfied himself that, either there was no reason at all to be concerned, or that there was a non-discriminatory reason to be concerned about the complainant's status as a potential tenant. However he chose not to consider her individual circumstances.
- Even if there was a potential reason to be concerned about the complainant as a tenant, the respondent could have chosen a less onerous way for her to rebut it; for example by allowing her to provide details/references of her personal history as a tenant.
- The respondent argued that the methods he uses to gather information are essential if he is to look after his clients properly. However given that these methods are at best unfair and subjective, they cannot possibly be used to successfully defend an argument that the information thus gained is non-discriminatory.
4.6 As a result of the above, I find that the respondent has not rebutted the claim of discrimination with respect to the Ms Cash's complaint that she was denied the service in question.
4.7 The complainant raised some minor issues about the phone calls and letters; however I accept the respondent's explanation that this was normal course of business.
4.8 The complainant also raised the issue that the respondent had been given information, which he was not entitled to, by employees of various public sector organisations. However I note that issues of Data Protection are outside the jurisdiction of the Tribunal.
4.9 The complainant referred to the race ground in her original ES1 form. However, no evidence was adduced on this point and I note that members of the Traveller community are specifically protected as a separate discriminatory ground under the Equal Stats Acts. Therefore in the current context I find it unnecessary to consider this point further.
5.0 Decision
5.1 I find that the complainant has raised a prima facie case of discrimination which has not been rebutted by the respondent. The complainant therefore succeeds and I award her 1,500 Euros in compensation for the upset and humiliation suffered. (In considering the quantum of redress, I have noted and accepted the respondent's submission that he did not intend the Garda Clearance Certificate to block the complainant from accessing the service. I accept that his intention was to help him vet the tenant; however I find that in practice it had the effect of blocking the tenant from accessing the service. )
_______________
Elaine Cassidy,
Equality Officer
29/07/2011