THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2011-043
PARTIES
Elizabeth and Thomas Burke (and on behalf of their 5 children)
(represented by Kerry Travellers Development Project)
and
Waterford City Council
(represented by Nolan Farrell & Goff, Solicitors)
File Reference: ES/2009/088
Date of Issue: 5th October 2011
Equality Officer Decision
DEC-S2011-043
Keywords
Equal Status Acts, 2000 to 2008 - Section 3(1) - Direct discrimination, Section 3(2)(h), Race - Section 3(2)(i) - Traveller community - Discrimination by a Housing Authority, Section 6(1) - Harassment, Section 11.
1. Delegation under the Equal Status Acts, 2000-2008
1.1 This complaint was referred to the Director of the Equality Tribunal on the 5th August 2009 under the Equal Status Acts. On 28th February 2011, in accordance with his powers under Section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the 22nd June 2011. Final correspondence with the parties concluded on the 11th July 2011.
2. Dispute
2.1 This dispute concerns a claim by the complainants that they were discriminated against by the respondent on the grounds of their membership of the Traveller community and race, in terms of Sections 3(1)(a), 3(2)(h) and 3(2)(i) of the Equal Status Acts and in not being provided with a service contrary to Section 6(1) of the Equal Status Acts. The complainants also claim that the respondent's actions amount to harassment in terms Section 11 of the Acts.
3. Summary of the Complainants' Case
3.1 The complainants, Elizabeth and Thomas Burke and their five children are members of the Traveller community. The complainants were living in local authority housing at Crystal Court, Kilcohan in Waterford City since 2006. They claim that they had carried out many improvements to the property while they were living there. They claim that they were happy there, that they had settled in the community very well, had nice neighbours and the children were attending school locally and they were well thought of in the area.
3.2 The complainants claim that a Traveller feud broke out in the city on the 12th July 2008. In her oral evidence Mrs. Burke claims that their house was fire bombed the next day on the 13th June 2008, whereas, in their written submission the complainants state that the house was fire bombed in September 2008. The complainants claim that they had to move away for their own safety. Mrs. Burke claims that she met with one of the officers of Waterford City Council and asked what could be done for them. She asked if they could get somewhere to live outside of the city. Mrs. Burke claims that she was told that nothing could be done until the Traveller feud died down. She claims that the respondent did not offer them emergency temporary accommodation. Mrs. Burke claims that she was in such a traumatised state that she approached the respondent and signed a surrender of tenancy document in September 2008. She claims that she told the Officer at the respondent that she was signing the document "against her will"; she claims that she was stressed at the time and on anti-depressants and she "did not know what [she] was doing". The complainant's claim that the feud did died down later that September and she asked the respondent for permission to move back into the house and that permission was granted for the family to return to the property.
3.3 The complainants claim that the Traveller feud soon started up again and a gun shot was fired into their house in Crystal Court in October 2008. They claim that for the safety of their children they decided to leave Waterford. They claim that they fled leaving many of their belongings behind them. They claimed that they moved on to Bantry, Co. Cork and then Kerry where some of their family were located. It was Ms. Burke's oral evidence that while in Bantry they sought accommodation there and were told that they would have to surrender their property in Waterford City first before they could get accommodation. They claimed that the respondent sent an Official down to Bantry where they were staying in temporary accommodation and made them sign a surrender of tenancy document for the property at Crystal Court. They claimed that they then moved to Kerry where they sought temporary accommodation and were put up in a B&B in November for one week and in February for three weeks.
3.4 When questioned about the respondent's Official coming down to "force them to sign the surrender of tenancy document", the complainants claim that other Traveller families had moved to Bantry, away from Waterford at the time of the feud and it was those families who arranged for the respondent to travel down to sign the tenancy surrender documents. Mrs. Burke claims that she did not organise for the respondent to visit them; she claims that she wanted her house back. She also claims that all her possessions were left in the house and when she called back to the house at a later stage everything had been dumped out by the respondent, and there was no opportunity to collect their belongings. Mrs. Burke claims that "all the respondent wanted was for her family to sign the house away and then go back on the housing list" which could then take them years to get permanent accommodation again.
3.5 When it was put to Mr. Burke that he was involved in the Traveller feud in the City and was taken into custody by An Gardaí Síochána and questioned at the time, he replied that many people were questioned about the feud at the time but he was never charged with anything.
3.6 The complainants claim that they were victims of a heinous crime which resulted in the destruction of their property which they had to flee through no fault of their own. They claim that they were asked to surrender their home instead of receiving support from the respondent. They claim that when they felt it was safe to return to their home they were refused to do so by Waterford City Council. The complainants claim that this constitutes blatant discrimination against members of the Traveller community.
3.7 The complainants also claim that asking them to sign a surrender of tenancy of their home at the time when they were at their most vulnerable constitutes a form of harassment. Also, by making them live in unfit conditions while they waited to return to their home was a form of harassment.
4 Summary of the Respondent's Case
4.1 The respondent claims that the Burke family were applicants on its housing list and had a standard tenancy contract for the property at Crystal Court from 12th June 2006. The respondent claims that a Traveller feud started up in Waterford City on the 12th July 2008. It claims that there was wide spread disruption in the city from petrol bombings, shootings, numerous arrests, attacks on property and people. It claims that 14 housing units of Waterford City Council were attacked and damaged during the feud. The respondent agrees that the complainants' property was one of the properties fire bombed and damaged at this time. However, it claims that there were two attacks on the complainants' property; the 1st incident caused minor damage whereas the second arson attack on the 28th October 2008 caused major damage to the property and was substantial.
4.2 The respondent agrees that it did not offer the Burke family emergency temporary accommodation in Waterford City at the time. However, it claims that the Burke family did not seek emergency temporary accommodation in Waterford City at the time. It claims that Mrs. Burke sought emergency accommodation outside of Waterford City, and it does not have any accommodation outside of the City and therefore could not be of assistance with that option. In relation to the feud, it claims certain Travellers were targeting other Travellers and their property. It claims that it was unable to help any of the families displaced because of the vicious attacks during this dreadful time. The respondent claims that there was a genuine fear that had families caught up in the feud being given temporary accommodation in the City, in a hostel or Bed and Breakfast accommodation, that these properties would too be targeted endangering others. It claims that there were serious concerns that it would put the occupants and staff of the emergency temporary accommodation in danger. The respondent claims that this was not a normal situation. It claims that they could not risk the health and safety of its officials or contractors because the situation was so dangerous.
4.3 The respondent claims that Mrs. Elizabeth Burke first approached them and volunteered to surrender the property at Crystal Court, Kilcohan, at its offices in Waterford City. The Officer she spoke with was presented at the hearing and his evidence was that he discussed the matter with Mrs. Burke, as he knew the Burke family were on the housing waiting list for some time until they took up the property at Crystal Court. He claims that he informed Mrs. Burke of the consequences of signing the surrender document namely, that she would be handing back the property and could not get that property again and if she required housing from Waterford City Council in the future, she would have to re-apply and would have to re-join the housing list again. It claims this is the rule for everyone in receipt of accommodation form Waterford City Council, Traveller or non-Traveller alike. The respondent presented a copy of the surrender of tenancy signed by Mrs. Elizabeth Burke dated 12th September 2008.
4.4 The respondent claims that soon after the feud abated Mrs. Burke approached it again requesting permission to return with her family to Crystal Court. The respondent reiterated its policy and practices that once a property is surrendered regardless of origin or background of the tenant that surrender is irrevocable. However, in this instance the respondent decided to allow the Burke family return to the property as both Thomas and Elizabeth's names were on the tenancy agreement and only Elizabeth had signed the surrender of the house. The respondent claims that the feud re-ignited soon after that again and the Burke family disappeared.
4.5 The respondent claims that it received contact from the Burke family in early November 2008 who again volunteered to surrender their Waterford home. The respondent claims that the complainants were asked to travel to Waterford City Council to sign the necessary documents. However, they claim that Mr. Burke was not willing to travel to Waterford in fear of his safety. It was arranged that one of the respondent's Officials was willing to travel to Bantry, outside of her working time, on the way to a weekend in Cork, to meet with the Burkes and allow them sign the necessary surrender documents, which they did on the 8th November 2008. The respondent claims that it never forced the complainants to surrender the property. The respondent presented a copy of the surrender of tenancy document signed by Mr. and Mrs. Burke.
4.6 The respondent said that on inspection of the property at Crystal Court none of the items that the complainants claim they left behind them were at the property. The respondent claims when the feud stopped, the property at Crystal Court was renovated as a result of the fire damage and after this was completed it was allocated in accordance with the Waterford City Councils Scheme of Letting priorities to approved Housing Applicants.
5. Conclusions of the Equality Officer in relation to the substantive issue
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. 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. In making my decision, I have taken into account all of the evidence both written and oral, made to me by the parties to the case.
Traveller community ground - Direct Discrimination
5.2 The complainants have claimed that the respondent subjected them to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which it did not offer the family temporary emergency accommodation and that they were not allowed to return to the house at Crystal Court following their request. The respondent denies that the complainants were subjected to discrimination on the grounds of their membership of the Traveller community and it claims that the complainants were dealt with as well as they could be in the circumstances and in accordance with its normal practice and procedures following the complainants' decision to voluntarily surrender the property in Waterford City. Therefore, the question that I must decide in relation to this issue is whether the complainants were treated less favourably than another person or persons would have been, in similar circumstances, on the grounds of their membership of the Traveller community. In considering this question and based on the evidence presented, I am satisfied that all of the complainants are covered by the specific ground under the Equal Status Acts.
5.3 Firstly, the complainants claim that they were not provided with emergency temporary accommodation following the attack on their property in Crystal Court during the Traveller feud in the City in 2008. I note that the respondent claims that the property was attacked and that Mrs. Burke approached it and asked for accommodation outside of the City. I note that the complainant's claim that there was only one arson attack on the property that the second incident was a gun shot. I note that the respondent claims that there were two arson attacks on the property, the first attack was minor in nature and that the more substantial problem was at the end of October 2008 resulting in substantial damage to the property. I note the respondent's evidence that its emergency temporary accommodation solution was the use of either Hostels and/or B&B's in Waterford City. However, the respondent believed that there was a potential threat to the property, staff and other inhabitants of those facilities if any of the displaced families involved in the feud or targeted by the feuding parties were place there. Therefore, the respondent was unable to offer any of these options to the complainants' as emergency temporary accommodation in Waterford City. The respondent provided information of two families that were given emergency temporary accommodation during the period 2007 to 2009, one family was a Traveller family and the other a non-Traveller family, to demonstrate that they do not discriminate on this ground, in such a situation.
5.4 I note the complainants' claim that I should compare the actions of the respondent in housing other non-Traveller families seeking emergency temporary accommodation when their property became inhabitable due to fire or otherwise. I note the respondent has given me information on examples of equal treatment for both Traveller and non Traveller families. I am also satisfied that the circumstances surrounding the feud were extraordinary and extremely difficult for both the Burke family and the respondent, its officials and staff. I am satisfied that the situation facing the respondent was not one of a simple need for emergency temporary accommodation but one of a more complex situation with obvious multiple consequences for others in the City of Waterford. I am satisfied with the respondent's evidence that Mrs. Burke asked for accommodation outside of the City, which is clearly beyond its jurisdiction. At the same time I note that Mrs. Burke signed a document to surrender her house as she feared for her family remaining in Waterford City. I am satisfied that the respondent had to make a decision based on those facts and in the best interest of Health and Safety for everyone. I am satisfied that the respondent did not make its decisions lightly, without taking cognisance of the dangerous situation unfolding in Waterford City and the fact that Mr. and Mrs. Burke were fearful of their family remaining in the City. Accordingly, in the present circumstances, I am satisfied that the respondent's decision not to provide the complainants with temporary emergency accommodation was not motivated by anything other than prudent consideration of the circumstances before it and certainly not motivated by discrimination of the complainants on the grounds of their Traveller status.
5.5 In relation to the surrender of the property at Crystal Court, I am satisfied that Mrs. Burke approached the respondent voluntarily and requested to surrender the property during the feud in early September. I accept her evidence that she was suffering from stress at the time, however I also accept that she was informed at that stage of the consequences of surrender, in particular that if they required housing in the future they would have to re-apply for housing and go through the process again. I accept the respondent's evidence that its practice is that once properties are surrendered they are not then given back to the occupant at a future point and that this practice is applied uniformly to members of both the settled and Traveller community. I note that Mrs. Burke requested to return to the house when the feud died down and that the respondent decided to allow the Burke family return to the property on the basis that only Mrs. Burke signed the surrender document whereas both Mr. and Mrs. Burkes' names were on the tenancy contract.
5.6 I am satisfied from the complainant's evidence that they moved away from Waterford City because of the feud and they did not feel safe to return. I note the respondent's evidence that the Burkes reinforced their fear for safety to it on a number of occasions during this process. I have heard Mrs. Burke's evidence that the Burke family could not obtain housing elsewhere while they had property assigned to them in Waterford and that they did not want to return to Waterford while the feud was on going. The evidence in relation to the respondent's official travelling down to Bantry and the signing of the surrender of tenancy document is disputed. However, I am satisfied that the complainants' surrender of tenancy of the property in Waterford City was a precursor to getting accommodation elsewhere. Accordingly, I prefer the respondent's evidence here and that it was the complainants who requested the respondent to provide them with the opportunity to surrender the property so as to facilitate and expedite their position to avail of accommodation elsewhere. I am satisfied that the complainants were aware of the consequences of signing that document at that time namely, that they could not return to the same property.
5.7 I am satisfied that the respondent has to be allowed to manage its property portfolio resources with some level of certainty. I am satisfied that once a property becomes available through surrender or otherwise, there is a list of applicants waiting for that resource to become available - I note the complainants were waiting some time for the property in Crystal Court to come available. I do not believe that it is fair that a tenant that surrenders a property, be it a member of the Traveller community or otherwise, to legitimately feel entitled to return to that property at some point in the future, when they choose to do so and that the Housing Authority would be expected to leave that property idle in the mean-time.
5.8 Therefore, having regard to the totality of the evidence presented to me in this case, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the complainants were subjected to less favourable treatment on the Traveller ground in terms of the manner in which they were treated by the respondent in the circumstances of this case. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground.
Harassment
5.9 The next element of the complaint that I must consider relates to the complainants' claim that they were subjected to harassment by the respondent contrary to the provisions of Section 11(5) of the Equal Status Acts, 2000 to 2008. The appropriate provisions of the Acts are set out below.
11. -- (1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (''the victim'') where the victim --
(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,
(2) 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.
(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the ...harassment.. of the other person referred to in subsection (2) or of a category of person of which that other person is a member.
(4) A person's rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.
(5) (a) In this section --
(i) references to harassment are to 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 an 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.
5.10 The complainants claim that they were subjected to harassment by the respondent "forcing them to sign a surrender of tenancy document" and its failure to accommodate their requests to return to the property in Waterford City forcing them to live in unfit conditions. I note that the respondent emphatically denied that it engaged in any such behaviour in its dealing with the Burke family that could be deemed to amount to harassment. As I have already found above, I am satisfied that the Burke family voluntarily surrendered their property and the consequence of the surrender was made known to them well in advance. Accordingly, I am satisfied that no evidence was presented to me, which could be construed as harassment within the meaning of Section 11(5) of the Equal Status Acts. Based on the evidence presented, I am of the view that the respondent engaged with the complainants in a professional manner to assist them. Having regard to the foregoing, I find that the complainants have failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status
Race Ground
5.11 The complainants have also claimed that they were subjected to discrimination on the grounds of their race in terms of the manner in which they were treated by the respondent. In their opening submission the complainants claim that as members of the Traveller community they are also covered by the definition of race within the Equal Status Acts. Having considered this aspect of the complaint, I note that the Equal Status Acts have listed 10 different discriminatory grounds where a person shall not be treated less favourably than another person not covered by that discriminatory ground. The Acts provide exclusively for members of the Traveller community in section 3(2)(i) and this is described as the Traveller community ground. I also note that the "Traveller community" is defined as Section 2 of the Acts as follows, ''Traveller community'' means the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland. Accordingly, I am satisfied that the complainants are correctly covered by Section 3(2)(i), the Traveller Community ground. As no other arguments were made in relation to this claim and without any further evidence adduced to establish their claim that they are covered by the race ground within the meaning of the Equal Status Acts, I find it unnecessary to consider this point further.
6. Decision
6.1 On the basis of the foregoing, I find that the complainants have failed to establish a prima facie case of discrimination on the Race and Traveller community grounds in terms of sections 3(1), 3(2)(h) and 3(2)(i) of the Equal Status Acts. I also find that the complainants have failed to establish a prima facie case of harassment within the meaning of section 11 of the Equal Status Acts. Accordingly, I find in favour of the respondent in the matter.
______________________
James Kelly
Equality Officer
5th October 2011