THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS
Decision No. DEC-S2012-015
PARTIES
Kathleen Maughan
(represented by Siobhan Phelan, B.L.,
instructed by Irish Traveller Movement)
-v-
Grattan Lodge Management Company
(represented by Caroline McGrath, B.L.,
instructed by Patrick Tallan & co., Solicitors)
File Reference: ES/2010/076, /087 & /088
Date of Issue: 3rd May, 2012
Key words
Equal Status Acts - Section 3(2)(i), Traveller Ground - Section 6(2)(c), whether accommodation available to public - Power cut off - Section 15(1) exemption - Section 11, harassment
1. Delegation under the relevant legislation
1.1. On 28th July, 2010, Ms Kathleen Maughan (hereinafter referred to as "the complainant") referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2008. On the 25th July, 2011, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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 ("the Acts"), on which date my investigation commenced.
1.2. Written submissions were received from both parties. An adjournment of the initial hearing was granted to the complainant. Hearings of the complaint were then held on 29th November, 2011 and 31st January, 2012. Further documentation was sought from the respondent and final correspondence in this respect was received on 15th February, 2012.
2. Dispute
2.1. This case concerns complaints by the complainant that she was discriminated against and harassed by Grattan Lodge Management Company (hereinafter referred to as "the respondent") on the Traveller ground, contrary to section 3(2)(i) of the Equal Status Acts, and contrary to Section 6 and 11 of the Equal Status Acts in that the power was cut off to her apartment by the respondent and she was harassed and treated less favourably by it in that and other contexts.
3. Summary of the Complainant's case
Evidence of the Complainant
3.1. The complainant identifies herself as a Traveller. She stated that, on 26th November, 2009, she, along with her infant child, took up residence as a tenant in a property in the estate for which the respondent was the property management company. She said that she did not think that the respondent "liked Travellers" and outlined why she thought this was the case. In particular in this respect, she described an incident when she said that the respondent had tried to intimidate her partner, Mr. A. She also said that her landlord, Mr. B, had told her that Ms. C, a Director of the respondent, had said she would cut off their electricity because of anti-social behaviour.
3.2. The complainant agreed that a complaint had been made that people coming to her apartment were arriving in commercial vehicles. However, she stated that nobody ever made a complaint about a party to her and she was not aware of any complaints about anti-social behaviour until 15th January, 2010 when Mr. B informed her of the complaint passed on to him by Ms. C. She said that Mr. B gave her a warning then, even though she told him that there was no anti-social behaviour. She agreed that she wouldn't know if anything happened when she was not in the apartment while Mr. A was. However, she denied that any one ever came and went from her apartment carrying cans of drink and said that the only people that had been in the apartment were her father, Mr. A's father and three friends of Mr. A, but no one other than Mr. A stayed overnight.
3.3. The complainant stated that Mr. A and three of his friends were in the apartment on the evening of the 28th January while she was out from 9.30 p.m. to approximately 11.45 p.m. She said that they spent the evening watching a football match and playing cards while Mr. A minded the baby. She said that only Mr. A and one of his friends were still there when she returned. She said that she left the apartment the next morning at approximately 11.30 a.m. She stated that when she returned between 2 and 2.30 p.m. that day, she found that her electricity, water and heating had been cut off. She said that the apartment was freezing and she could not stay the night. She also denied that there were any disturbances that night. She said that the power was not restored until 9 or 10 days later. She stated that she stayed with family while the power was cut off.
3.4. The complainant accepted that there had been a stabbing in the neighbouring apartment block and understood why Ms. C would want to call the Gardaí to deal with any serious disturbance in that context, but denied that there was any such disturbance in her apartment. She agreed that she had text Ms. C saying "check your mailbox" but this was in the context that she had just put a letter from Mr. B into that mailbox. She denied ever banging on Ms. C's door with a weapon. However, she agreed that was given a caution by the Gardaí with respect to her interaction with Ms. C. She stated that she vacated the premises sometime in March as she was "getting no peace in it". She stated that her services had been cut off and she had been harassed by the respondent because she was a Traveller.
Evidence of Mr. A
3.5. Mr. A said that he was also not aware of any complaints until 15th January, 2010. He said that, on that occasion, he told Mr. B there was nothing going on. He said that on the evening of the 28th January he was in the apartment accompanied by some friends. He said they watched football. He said that only one of these friends had visited the apartment regularly. He denied that five men left the apartment drunk the next morning. In that respect, he asked how could there be a party when he was minding a baby? He denied there were any parties in the apartment. He said that on the evening of the 29th January, Ms. C's partner, Mr. D, came down, started banging on the door and said "ye sort of people shouldn't be in this complex". He said that he answered it was none of his "fucking business" and he told Mr. B of this when he arrived around 7 p.m.
Evidence of Mr. B
3.6. Mr. B said that he had received an e-mail on 23rd November, 2009 with respect to the complainant's apartment and concerning the parking of a van. He said that the frequency of the gate was changed sometime after this so that the fob for opening the gate would not work. He said that he asked Mr. D to reprogram the fob and left it for him to repair but did not get it back until he went to court to do so. He stated that this was an attempt to exclude the complainant and Mr. A from use of the parking facilities. He said that he only became aware that commercial vehicles were not allowed after checking it out through his solicitor but he accepted that it was a rule.
3.7. Mr. B said that an e-mail he received from Ms. C on 15th January was the first complaint that he received about anti-social behaviour in the apartment in question. He said he asked Ms. C to remove the reference to Travellers in this e-mail because he did not want the complainant and Mr. A to take offence when he showed it to them. He said that he took on board what was said in that e-mail and discussed the matter with the complainant and Mr. A. He said that he told them that if he kept getting complaints and they were justified, they would "be out". He said that he told Ms. C that he had given the tenants a warning, although they had denied much of what was said in the e-mail, but that that Ms. C was not happy with this. He said that he recalled her mentioning something about "Hiace vans" being outside, that it was an exclusive development and that she "did not want those kind of people there".
3.8. Mr. B said that, on Friday 29th January, he received a sequence of phone messages from Ms. C with respect to a disturbance that was alleged to have taken place on 28th January. He said that he sought to make contact with either the complainant or Mr. A before returning the calls as he did not want to contact the respondent until he got "the other side of the story". He said that his concerns about meeting with the complainant and Mr. A were from the point of view that he was concerned that the respondent would try to inflame the situation. He said that he confirmed to the respondent that he would meet with it just after 7 p.m., having met the complainant and Mr. A first. He denied that he asked that Mr. D accompany him in that context.
3.9. Mr. B then met the complainant and Mr. A at 7 p.m.. He said that they told him that other tenants had earlier "started kicking" the door saying that the "fucking landlord is going to sort you out". He said that he managed to calm down the situation and that he gave the tenants a warning and left. He said that he did not meet the respondent as he felt it had tried to provoke the complainant and Mr. A into assaulting him so that he would remove them from the premises, and he was "furious" about this.
3.10. Mr. B said that at 8.45 p.m. he received a message from Ms. C asking how things had gone and saying that if he didn't ring her back things would only deteriorate to his disadvantage. He said that he phoned her back and told her that he was annoyed and that the respondent was deliberately trying to create a violent situation. He said that she told him that he would never be able to rent an apartment again as his services would be cut off. He said that, at 9.10 p.m., Ms. C left a message saying that he should go to Coolock Garda Station and say that the complainant and Mr. A had tried to intimidate him.
3.11. Mr. B said that, at 8.30 a.m. the following day (30th January), Ms. C phoned his home and left a message saying that there had been reports of a stabbing, that young Traveller males had broken into apartments and that the emergency services had been called. He said that he phoned Coolock Garda Station and was told that they had no record of the incident. He said that, when he spoke to the Gardaí on 1st February, they told him that they had not received any complaints to date about the apartment in question. He said that on the evening of 2nd February he got a call from the complainant saying that she had been asked to go to Coolock Garda station. He said that he went there with her and met with two Gardaí. He gave an account of that meeting.
3.12. Mr. B said that he never received a complaint that the complainant had been abusive and threatening towards Ms. C at any stage. He said that he was aware she had sent Ms. C a text but it was in the context that he had given her a solicitor's letter to deliver to Ms. C. He said that he had done so as he did not want to make any direct contact with the respondent given he had taken legal action against it to restore power to the apartment.
3.13. Mr. B denied that he was frightened of the complainant and/or Mr. A and denied ever saying that he was to Ms. C. He also denied that it was his idea to cut off the services to the complainant's apartment. He said that he had complaints about a previous tenant and he was notified of same by the owner of the apartment below but was not sure if he was e-mailed by Ms. C. He agreed that the accepted practice in this respect was to communicate directly with the landlord or through the management company.
General Submissions
3.14. With respect to the jurisdictional issues (see pars. 4.1 to 4.2 below), the complainant stated that the Equal Status Acts gave effect to the requirements of European Law. In that context, she said it is crystal clear that the provisions of the Race Directive apply to services provided to both the public and to private people as provided in Article 3. Furthermore, she stated that Section 6(1) of the Acts captures the respondent as a management company. She added that the purposive approach should be taken in this case so that exemptions are interpreted narrowly and so that they are in accordance with the general purpose of the Acts. In any event, she stated that services do apply to a section of the public in that the services in question are available for letting. She stated that the services supplied affect not just its members but anyone occupying the apartment.
3.15. The complainant referred to s.6(2)(d), which states that the Acts do not apply with respect to "the provision of accommodation by a person in a part (other than a separate and self-contained part) of the person's home, or where the provision of the accommodation affects the person's private or family life or that of any other person residing in the home". She stated that it was inserted by the 2004 Equality Act and if it was considered that s.6(1) did not apply to private dwellings then s.6(2)(d) would not need to have been inserted. In that regard, she stated that if s.6(2)(c) was considered not even to apply to a private home then how can it not apply to services in an apartment in an apartment block. She stated that she was a member of the public and not a shareholder or member. She is therefore a member of the public who is letting the premises.
3.16. With respect to the exemption provided in s.15(1) of the Acts, she stated that no credible evidence was advanced which would allow the respondent to rely upon this defence. Furthermore, she said that the Gardaí had no reports of any incidents.
3.17. In summary, the complainant contrasted her treatment with that of another tenant (see pars. 4.10, and 4.19 below) pointing out that Mr. E (that tenant's landlord) received numerous warnings about the behaviour of the tenant in question whereas there had been only one complaint in writing in her case. She added that Mr. B was a proactive landlord who dealt with each complainant about the apartment in question in a timely and proactive manner. Furthermore, she stated that Mr. E's tenant did not have his services cut. She stated that she was treated less favourably on that basis and had established a prima facie case of discrimination in that context.
3.18. The complainant added that she was harassed by the act of cutting off her services and then having complaints about her "conjured up" to the Gardaí. She said that there was an orchestrated campaign against her in this respect because she was a Traveller. She also described the impact this treatment has had on her, particularly in that she had to vacate the premises because she could not continue to live there in those circumstances. The complainant also pointed to the fact that she had an infant with her in the apartment. She stated that the evidence met the criteria for a prima facie case of harassment and discrimination in that context.
4. Summary of the Respondent's case
4.1. The respondent raised issues with respect to the jurisdiction of the Tribunal in the matter. Firstly, it submitted that the respondent is not a service provider liable under s. 5 and is not governed by s. 6 of the Acts either. In that respect, it stated that s.6 distinguishes between the provision of accommodation and the provision of services and the respondent does not provide accommodation: that relationship is between the complainant and Mr. A.
4.2. The respondent also referred to s. 6(2)(c) which states that Section 6(1) of the Acts does not apply with respect to "any disposal of such an estate or interest, or any provision of accommodation or of any services or amenities relating to accommodation, which is not available to the public generally or a section of the public." It submitted that it was a private company whose members are selected through purchase of property in the development and the only obligations it owes are to those members. It said that the only people who can become members are entitled to avail of those services, including Mr. B. It referred to Hoey -v- ADM Ltd. in saying that it was clear that private situations are not covered by s.6. In short, it stated that the complainant has no locus standi to take a case as she is not a member of the management company.
Evidence of Ms. C
4.3. Ms. C, who was present at the first hearing, stated that she was one of two Directors of the respondent management company. She submitted that male individuals attending at and/or living in the complainant's apartment were engaging in anti-social behaviour. She stated, however, that she did not know who they were and did not see them going in and out. She said that the anti-social behaviour in question had started long before the middle of January and, in that respect, she had received an e-mail from other neighbours who were "terribly agitated". She said that she had already explained to Mr. B that she would have to take legal action in that respect.
4.4. Ms. C said that, on 17th January, 2010, Mr. B had told her that he was terrified of the tenants living in the apartment in question. She said that he told her that he did not know who they were and did not know how to evict them. She said that they then discussed ways of what to do in this situation and it was Mr. B that suggested turning off the services. She said that she asked him to address the situation and told him that if he was terrified he should report it to the Gardaí. However, she said that she did not have any recollection of telling Mr. B that he would never be able to rent the apartment again as his services would be cut off. She said that, subsequently, Mr. B would not pick up the phone to her.
4.5. Ms. C described the disturbances which she said took place in the complainant's apartment on the night of 28th/29th January, making particular reference to the noise level that was emanating from it. She said she rang the Gardaí "in the middle of it all" but they told her it was a civil matter. She said that she eventually went to bed. She said that it escalated to the point where on the 29th January, at 11 a.m., she received a call from Mr. D to say that he saw five men who were physically drunk from an all-night party leaving the apartment in question and "piling into" their van, shouting as they were driving off. She said that one of the reasons she was taking this so seriously was that, earlier that month, a man had been stabbed in a neighbouring apartment block in similar circumstances to those that had arisen in the apartment in question.
4.6. Ms. C said that, at approximately 4.30 p.m. on 29th January, she got a call from Mr. D to say that the people who got into the van were back. She said that she had also received a call from Mr. E to say that he had received a call from a distraught tenant who told him that they had moved on as a result of the anti-social behaviour in question. She said that the tension was so high that she felt she had to do something so she made the decision to cut the electricity to the complainant's apartment in the belief that there was going to be "a disaster". She stated that Mr. B then rang and told her that he would "come up" if he "had back-up". She said that she handed the phone to Mr. D and they discussed the matter. She said that Mr. D and another resident said they would go up and try to talk to "these men". She said that she later sent Mr. B a text asking how things went but he didn't respond.
4.7. Ms. C said that, on 30th January, she rang Mr. B to say that the emergency services had to be called to the apartment block the previous night. She said that she saw that, just as a young lady had put her key in the door, a few people jumped out of a car and pushed past her into the apartment block. She said that the lady was terrified. She said that she spoke to the Gardaí afterwards and they said that they had received a call saying that a person had been locked into an apartment and they couldn't get to him and they thought he might have been stabbed.
4.8. Ms. C said that she then started to get abusive and threatening texts and calls from the complainant, including a text saying "check your mailbox". She also stated that the complainant came up and attacked her door with a weapon. She said that while she had never met the complainant before she assumed it was her because her electricity had been cut off. She said that she was "very, very afraid" and had to call the Gardaí, who then cautioned the complainant over the phone and requested to meet with her. She said that she heard a Garda telling the complainant over the phone that she could be charged with anti-social behaviour. She that she believed that Mr. B attended a meeting with the complainant and the Gardaí in that context.
4.9. Ms. C said that, on 5th February, 2010, she received a text from the complainant saying "thanks" after she restored the electricity. She stated that there was no anti-social behaviour after that. She believed that the complainant moved out on 1st March and new tenants moved in that afternoon.
4.10. Ms. C stated that if a resident is experiencing anti-social behaviour they would put it in writing to a Director of the respondent who would contact the landlord to put in place efforts to have the behaviour cease. She described how anti-social behaviour in another apartment had been dealt with, stating that she wrote to Mr. E on foot of particularly serious incidents and that each time she wrote, he would deal with the matter. She said that eventually it became very serious and the tenants were evicted. She said that one of the tenants concerned had been abusing and selling drugs, was regularly "out of control", had let off fire extinguishers and had assaulted someone. She said that she did not proceed to cut off electricity in that case as the landlord responded and it was all over in a period of weeks. She said that the difference was that Mr. E was dealing with it whereas Mr. B was not.
4.11. In the present case, Ms. C said that an escalation of the behaviour led to the electricity being cut off. She accepted that the correct protocol was that complaints should be put in writing but she was very, very worried and thought that people felt too intimidated to put complaints in writing. She said that she felt she was following the correct protocol but Mr. B was not responding and so she made the decision to cut off the electricity. She said that she had to do what she did in her capacity as a Director. She stated that, in any event, the electricity was only cut off for a week. She stated that it was not written down that they could cut off services but they were "terrified and desperate". She said that there was "crazy" behaviour going on including violence and abuse. She said that it was the worst example she had ever come across and was frightening. She said that she saw no sign of a baby.
4.12. Ms. C stated that she did not see any wrongdoing in writing an e-mail to Mr. B on 17th January in which she stated, inter alia, "we have had verbal complaints consistently from nearly all the other residents about these tenants whom we believe are travellers??" (Ms. C's emphasis). She said that she did not know why she referred to their status as Travellers and did not see any wrongdoing in doing so. She said that at no point did she state that the complainant herself was a Traveller. She said that what was alarming was that there appeared to be five men living in the apartment and that these were the people to whom she was referring. Ms. C denied that her treatment of the complainant related to her membership of the Traveller community.
Evidence of Mr. D
4.13. Mr. D, who was present at the first hearing, stated that he was employed by the respondent to carry out maintenance work in the apartment block in question. He said that he lived with Ms. C. He said that the fob referred to by the complainant and her witnesses was left with him by Mr. B. However, he said that he found it to be irreparable and put it back in the post box for the complainant's apartment.
4.14. Mr. D said that he never met the complainant before the hearing. However, he said that he knew Mr. A and would see him coming and going from the apartment and saw him entering the apartment with "buddies" on several occasions. He said that he informed Mr. B about this. He said there were no major problems before Christmas, 2009 but that the "frequency of drinking sessions" increased after this. In that regard, he said that on one particular day, he saw five young men acting in a boisterous and noisy manner. He said that some tenants approached him with their own personal anxiety about what was happening in the apartment block. He said that he was hoovering the car park on one particular evening when Mr. A came in with four "buddies" and "pushed my shoulder". He said that he did not report this to anyone as he did not "suffer from intimidation".
4.15. With respect to what occurred on the 28th and 29th January, Mr. D said that his living room window is 2.5 metres above the balcony of the complainant's apartment. He said that the behaviour from the apartment that evening was "absolutely nuts" and elaborated upon this statement. He stated that on the morning of the 29th he saw five men, who were loud and abusive, "hop" into their van. He said that they returned around 4.30 p.m. "laden down" with boxes of beer and spirits. He said that he informed the management company of this and got a call from Ms. C to disconnect the electricity supply to the apartment. He stated that it was impossible for him to disconnect the water supply.
4.16. Mr. D said that he did approach the apartment that evening as the level of noise was too high for a quiet development and that another tenant had approached him because "his head was melted" from the anti-social behaviour. He said that someone came to the door and he asked them to turn the noise level down. He denied strongly making any remarks along the lines of "your landlord will sort you out" as alleged by the complainant. He said that the response was "aggression" that was something along the lines of "there's five of us here in the back, you'd better get out of here". He said that he had no contact with Ms. C or Mr. B about the matter after this except when he was asked to switch the power on later.
4.17. Mr. D said that when Mr. A is on his own he is "quiet and polite" but when he is with "his associates" he is "a different man". He stated that it was absolutely not the case that the actions he took were related to the complainant's status as a Traveller. He stated that his issue was the behaviour of Mr. A and his "buddies".
Evidence of Mr. E
4.18. Mr. E, who was present at the first hearing, said that he did not have any first-hand experience of anti-social behaviour in the complainant's apartment but he did receive a call from one of his tenants on one particular evening to say that they had to move to their mother's house because of the noise in that apartment. He said that his tenant told him that he had seen five people with cans of beer and it sounded like someone had been "throwing couches". He said that he informed Ms. C about it and spoke with Mr. B also. He said that the tenants in question did not move immediately but did eventually.
4.19. Mr. E also stated that he had multiple problems with some earlier tenants. He stated that he had only received one of these complaints in writing. He said that he was initially asked to talk to them and eventually asked them to leave. He said that it appears that one of them had been in prison. He said that he was not aware of any situation where tenants had their services cut off.
General Submissions
4.20. The respondent stated that the manner in which it approached the situation was the same as it would approach someone who was an owner-occupier. It stated that, having received complaints about anti-social behaviour in the apartment, Ms. C made contact with Mr. B as per the correct protocol in that respect. With respect to the events of 28th and 29th January, it stated that Ms. C and Mr. D gave evidence of the conduct of the occupants of the apartment. It also pointed to the evidence of Mr. E and the complaints to Ms. C by other tenants which were forwarded to Mr. B in the e-mail referred to at par. 4.12 above. It also stated that the Tribunal should give careful consideration to the evidence of Mr. A as to how many people frequented the apartment.
4.21. The respondent stated that there was a consistency in the approach taken by it which was a Management Company operated by volunteer members. It stated that the evidence does not support the complainant's contention that there was a campaign of intimidation of the complainant, who said herself there were no difficulties prior to January, 2010. It stated that it had the impression that the complainant was not living in the apartment in question. With respect to the Gardaí not having any reports of any incidents, it stated that this relates to reports of incidents relating to the complainant and not incidents at the apartment in question. In any event, it stated that the evidence should be disregarded as hearsay.
4.22. The respondent stated that there were teething difficulties with house rules (e.g. the commercial vehicle) which were dealt with proactively and amicably. It stated that Ms. C was obliged to bring to Mr. B's attention the incidents that were reported to her. It stated that the complainant admitted that there were a number of males in the apartment on the evening of the 28th January. It stated that Ms. C and Mr. D gave evidence of the difficulties encountered with respect to anti-social behaviour that evening. It said that Mr. B admitted that he did not respond immediately. It stated that Ms. C made the decision to cut off services in that context. It stated that one might question the appropriateness of that course of action but that the evidence does not bear out the contention that it was a deliberate concerted campaign against the complainant because she was a Traveller.
4.23. Instead, it said that one had to look at all the circumstances. In that respect, it stated that the actions of Ms. C were actions an individual with the responsibility, knowledge and experience she had would have taken based on a belief that there was a substantial risk of disorderly conduct occurring. It stated that Ms. C was not a professional property manager but a homeowner with the responsibility to protect other homeowners. It said that she had been present herself the night before and had experienced difficulties. It said that she knew that there had been a serious incident at an adjoining property. It said that she knew that she was having difficulty communicating with Mr. B. It stated that this was the knowledge in which the decision was taken.
4.24. In that context, the respondent stated that the question is not that the complainant was a Traveller and the other tenant was not but that the situation was very different and an acute anxiety had arisen over a situation that could escalate. In that context, the respondent stated that this was a case in which s.15(1) of the Acts applies. In any event, it stated that the difficulties experienced by the complainant were for a very short period of time. It stated that there was no evidence that the complainant had any direct difficulties with Ms. C and no reason why she could not have continued to reside there. Ultimately, it stated that the Tribunal does not have jurisdiction under s.6 in any event.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties.
Preliminary Jurisdictional Matters
5.2. The issue at stake here is whether the respondent discriminated against the complainant in ceasing to provide the services in question (i.e. electricity to her apartment). For the respondent to avail of the exemption provided in s. 6(2)(c), it must be clear that the accommodation and/or services it ceased to provide to the complainant were not "available to the public generally or a section of the public".
5.3. In that context, the key fact in the present case is that the respondent has control over the provision of electrical power to the apartments in question but has no control over who that power is provided to as it has no involvement whatsoever in the selection of residents of those apartments. In theory, any member of the public could potentially become a tenant in or an owner of an apartment in the apartment block in question. It is certainly clear that the people who access the power in the apartment block in the present case are (at the very least) a section of the public, if not the public at large.
5.4. Furthermore, and as the respondent itself has said, the complainant is not a member of the management company and has not entered into any contract with it. Indeed, she has no direct relationship with it whatsoever. Additionally, it can be said that the tenants of the apartment block have no choice but to accept the management company as the provider of services to their residence. It is clear, then, that the complainant was a member of the public, or a section of the public, as far as her relationship with the respondent is concerned.
Substantive Matters
5.5. I have carefully evaluated all of the testimony proffered in the case by all six witnesses and I have taken account of the demeanour of the witnesses in giving this evidence. There was some agreement with respect to the facts of what occurred in the context of this complaint. However, most of the facts were in dispute. Having considered these disputes, I find that, where there is conflict in the evidence tendered by or on behalf of the respondent and that tendered by or on behalf of the complainant, I prefer the evidence tendered by or on behalf of the complainant.
Claim of Discrimination
5.6. It is accepted that Mr. D changed the code for the gate. However, I find I must agree with the complainant's submissions in this respect. Thus, I find that Mr. D did so solely because commercial vehicles belonging to visitors to the complainant's apartment were seen parking in the car park. While this was a breach of the House Rules, I am satisfied that he would not have changed the code had he and Ms. C not identified the owners of the commercial vehicles concerned as being Travellers. Furthermore, I am satisfied that Mr. D did not return the fob to either the complainant or Mr. B. I am satisfied that his failure to do so was a deliberate attempt to, at the very least, inconvenience the complainant and Mr. A. I am satisfied he would not have acted in this manner had the complainant and Mr. A not been Travellers.
5.7. I am also satisfied from the evidence given by Mr. B that Ms. C referred to "Hiace vans" in a conversation with him and stated that the apartment block in question was an exclusive development and that she "did not want those kind of people there". I am satisfied that these were derogatory remarks made on foot of her understanding that the people she was referring to were Travellers. I also note the e-mail from Ms. C to Mr. B in which she stated that she understood that the people concerned were, or might be, Travellers (referred to at par. 4.12 above). In that respect, I note that Ms. C could not adequately explain at the hearing why her reference to their status as Travellers was relevant to the allegations being made about them.
5.8. I am also satisfied that cutting power to the complainant's apartment was entirely the respondent's idea. Indeed, it is quite clear that Mr. B never suggested it, nor did he suggest that he was afraid of tenants who he took the respondent to court to protect. Furthermore, I am satisfied that Ms. C did threaten Mr. B that the services to his apartment would be cut off and that threat was used to try to force Mr. B into evicting the complainant and Mr. A. Nor do I accept that Mr. B was not contactable by Ms. C, even prior to the 29th January. As for his not returning Ms. C's call immediately on that day, it is clear that he acted in a fair-minded fashion in speaking with the complainant and Mr. A and getting their side of the story before responding to Ms. C, which he did within a matter of a few hours.
5.9. It is clear, then, that there were at least five men, including Mr. A, who visited the apartment in question on a regular basis. However, I prefer the evidence of the complainant and Mr. A in so far as they refuted the account given by Mr. D that these men were drinking and causing serious disruption to the apartment block in question, particularly given that there was an infant residing in the complainant's apartment. While there was additional evidence of anti-social behaviour emanating from that apartment, it is far from providing corroboration for Mr. D's accounts of extreme behaviour in this respect. Furthermore, and while there probably was some loud noise emanating from the apartment in question on the night of 28th January, I prefer the evidence of Mr. A in that respect over the account of Ms. C and Mr. D of further extreme behaviour from the people who were there that night.
5.10. In that context, I note the contrasting accounts of what occurred on the morning of 29th January. The accounts given by Ms. C and Mr. D were, in effect, that there was a serious escalation that morning of what they considered to be an already volatile situation that was in danger of becoming inflamed to a dangerous degree. The complainant and Mr. A gave a contrasting account notable for its absence of drama. In particular, they denied that there was anyone staying with them who could have been present to carry out the actions described by Mr. D. I prefer the evidence of the complainant and Mr. A in this respect. I find that there were no persons present in, at or in the vicinity of the complainant's apartment who could have carried out any of the actions described by Mr. D. Indeed, I am satisfied that there was no volatile situation to begin with, and thus no escalation of same.
5.11. Therefore, the cutting of power to the complainant's apartment was unrelated to any behaviour, anti-social or otherwise, by either the complainant or anyone who visited her apartment. Bearing in mind all the circumstances of this case and having considered all the evidence in that respect, I consequently must agree with the complainant's submission in so far as she alleged the following: that the respondent, as represented by both Ms. C and Mr. D, did not wish to have Travellers living in, or visiting, the apartment block in question and considered that the complainant would leave her apartment if they cut power to it. She did so, and was forced to do so as a direct consequence of her treatment by the respondent in that respect. It is clear, then, that power was cut to the complainant's apartment because she was a Traveller and she has established a prima facie case of discrimination in that context.
5.12. It should also be said that, even if I were to prefer the evidence of the respondent in every respect, the degree of leniency and patience the respondent showed with respect to Mr. E's former tenant contrasts vividly with the treatment of the complainant, Mr. A and their visitors. They did not damage any property. They did not engage in any criminal activity. While there were suggestions that they were violent, there is no evidence whatsoever of that other than an alleged bumping of shoulders between Mr. A and Mr. D. Yet the complainant's power was cut off. In contrast, Mr. E's former tenant allegedly engaged in serious criminal activity (i.e. selling drugs), damaged property in the common areas of the apartment block and interfered with vital safety equipment. Yet he was not evicted for several weeks, nor was it ever even suggested that his power should be cut off.
5.13. By no stretch of the imagination could it be said that the alleged behaviour of the complainant, Mr. A and his companions, even at its height, was so much more serious than that of Mr. E's former tenant that it justified this notably contrasting treatment. I cannot accept the respondent's submission that the difference between those cases was that Mr. E acted when Mr. B did not because that is clearly not the case. Indeed, not only did Mr. B act on the first complaint made to him by giving a warning to the complainant despite her protestations but he clearly told both Ms. C and Mr. D that he had acted in that manner.
5.14. I also prefer the evidence of the complainant with respect to her communication with Ms. C subsequent to the cutting of power to the apartment. I am satisfied that the texts sent by the complainant were for information purposes and were not abusive. I would also add that I am satisfied that the complainant was living in the apartment in question. In that context, I do not accept that neither Ms. C nor Mr. D ever saw, heard or were aware of the complainant and/or her baby living there.
5.15. In short, then, I am satisfied that the treatment of the complainant by the respondent, both with respect to the failure to return the fob to the complainant and the cutting of her power, was motivated by the fact that she, Mr. A and their visitors were Travellers. The complainant has established a prima facie case of discrimination on the Traveller ground in that context.
Claim of Harassment
5.16. I am satisfied that when Mr. D went to the complainant's apartment on the night of the 29th January, he threatened the complainant and Mr. A in an aggressive and intimidating manner, as described by Mr. A. I am satisfied that he did so with the intended purpose of putting them so in fear of him, the respondent, Mr. B and the other residents of the apartment block in question that they would leave their apartment. I am satisfied that his behaviour in this respect had both the purpose and the effect of violating the complainant's dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for her. I am satisfied that his motivation for behaving in this manner was that the complainant and her partner were Travellers
5.17. Therefore, I am satisfied that this behaviour constituted harassment by Mr. D of the complainant on the Traveller ground. For the avoidance of doubt, it should be added that I am satisfied that he was acting in his capacity as both an employee and agent of the respondent in this respect. In particular, it is clear from the facts that have been elicited in this case that, in acting in the manner in which he did, Mr. D was carrying out the wishes of Ms. C in so far as she sought to remove the complainant and Mr. A from the apartment block because they were Travellers.
Section 15 defence
5.18. Section 15(1) states that ".. nothing in this Act ... shall be construed as requiring a person to .. provide services or accommodation or services and amenities related to accommodation, to another person ("the customer") in circumstances which would lead a reasonable individual having the responsibility, knowledge and experience of the person to the belief, on grounds other than discriminatory grounds, that the disposal of the goods or premises or the provision of the services or accommodation or the services and amenities related to accommodation, as the case may be, to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the goods or services are sought or the premises or accommodation are located."
5.19. If I was satisfied that occupants of or visitors to the complainant's apartment were interfering with the right of any of the other occupants of the apartment block in question to a safe and peaceful home, then there is no doubt that Section 15 could apply. However, and as already stated, I prefer the evidence presented by or on behalf of the complainant in this respect. There may have been occasions when the noise from the complainant's apartment might be considered to be excessive. However, I do not find that there was any behaviour emanating from that apartment which any reasonable person would describe as creating a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of that apartment.
5.20. I have also considered all of the respondent's submissions with respect to Ms. C's state of mind at the time in question. In particular, I have considered its contention that she was influenced by the fact that, not long before this time, a person had been fatally injured in a similar set of circumstances in a neighbouring apartment block. However, in seeking to avail of Section 15, the onus is on the respondent to satisfy the Tribunal that the exemption applies in this case. In that context, I am not satisfied that when Ms. C authorised Mr. D to cut off power to the complainant's apartment that she did so based on any belief, genuine or otherwise, that there was a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the complainant's apartment. Therefore, Section 15 does not apply in this case.
Final Comments
5.21. In considering the redress to be awarded in this case, I note that cutting off any essential service to any dwelling, particularly in the middle of January, is a very serious matter. The impact on the complainant could have been extremely serious had she and her infant child not had support from her family and friends and another place to stay for the period during which her power was cut off. As it was, the complainant was subjected to discrimination of a very serious nature with respect to the act of cutting off her electricity and harassment of a very serious nature in terms of the threats to and intimidation of her by Mr. D. Both the discrimination and the harassment were undertaken in order to remove the complainant and her partner from their tenancy of the apartment in question, a tenancy which they were legitimately entitled to enjoy.
5.22. In light of all the circumstances of the present case, then, I am satisfied that the respondent acted deliberately and purposefully in acting in the manner in which it did. That purpose was to cause the complainant to depart from the apartment block in question because she was a Traveller. I am conscious that the respondent was highly successful in achieving its aims in that respect. In all the circumstances of the present complaint, then, I consider that I have a particular duty to provide a dissuasive award in this case. Therefore, I consider that the breach of the Acts by the respondent is at the very highest end of such breaches and an award close to the maximum award possible is appropriate, not least in order to fulfil my duty to make dissuasive awards where such are warranted.
6. Decision
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the respondent discriminated against the complainant on the Traveller ground in terms of Sections 3(1)(a) and 3(2)(i) of the Equal Status Acts, and contrary to Section 6(1)(c) of the Equal Status Acts.
6.3. I find that the respondent harassed the complainant on the Traveller ground, in terms of Sections 3(1)(a) and 3(2)(i) of the Equal Status Acts, and contrary to Section 11 of the Equal Status Acts.
6.4. I order the respondent to pay to the complainant the sum of €6,250 for the distress caused to the complainant as a result of the discrimination and harassment.
6.5. In accordance with Section 27(1)(b) of the Equal Status Acts, I also make the following order: that, within twelve months of the date of this decision, the respondent carries out a course of training on the Equal Status Acts, with a particular emphasis on the Traveller ground, and ensures that all employees and/or Directors of the respondent attend this course of training, which must be carried out by or provided in consultation with an appropriate person or organisation expert in that area of knowledge/responsibility.
_____________
Gary O'Doherty
Equality Officer
3rd May, 2012