The Equality Tribunal
Equal Status Acts, 2000 to 2013
Decision: DEC-S2014-005
Susan Kelly Markusson & Andreas Markusson
-v-
Vincent Finnegan Ltd.
File Ref: ES/2012/0138/0139
Date of Issue: 11 June 2014
Keywords: Equal Status Acts 2000-2013 – provision of accommodation – family status ground - Section 3 (1)(a) - Section 3(2)(c) – Section 6(1)
1. This complaint was referred to the Director of the Equality Tribunal on 19 October 2012 under the Equal Status Acts, 2000 – 2013 (hereinafter “the Acts”). 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, Valerie Murtagh, 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 1 May 2014, my investigation commenced when the complaint was delegated to me. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 14 May 2014. The complainants attended the hearing but the respondent was not present and failed to provide an explanation for same.
2. This dispute concerns a claim by the complainants that they were discriminated against by the respondent on the family status ground in terms of section 3 (2) (c) of the Acts in relation to being treated less favourably on grounds of family status as a result of Ms. M’s pregnancy, in that, they were refused access to lease an apartment on grounds that it was not suitable for children.
3. Summary of the Complainant’s case
3.1 The complainants attended a viewing of a two bedroom apartment at a Dublin address in August 2012. The viewing was organised by the respondent letting agency. After viewing the apartment and other apartments in the area, they decided the apartment they viewed with the respondent was the most suitable for their needs. The complainant, Ms. M subsequently contacted the respondent by telephone on 27 August 2012 to discuss leasing the apartment. During this call, she was told that the apartment was still available but the person (Ms. R) dealing with this property was unavailable until the following day. Ms. M telephoned Ms. R the following morning. During this telephone call, Ms. M was advised that the property was still available and Ms. M advised that some minor repairs were needed e.g. a detached smoke alarm from the ceiling and a faulty extraction fan in one of the bathrooms. Ms. M was informed that these types of repairs would be easily sorted out. During the call, Ms. M was asked who would be living in the apartment. When Ms. M advised that it was for herself, her husband and that she was expecting a baby before the end of 2012, she was then informed that leasing the apartment would not be possible as the landlord had given strict instructions on this matter. Ms. R did not give any information or reasons why the apartment was unsuitable for children during this call. The complainants are of the view that it is a clear case of family status discrimination because Ms. M was pregnant.
3.2 Following the incident, Ms. M sent Ms. R an e-mail later that day because she was very shocked and upset by the previous telephone call and wanted to request more information on why the apartment was not suitable. Ms. M received a reply where she was informed that the letting agent may only act under the instruction of their client, the landlord of the property and that they had given strict instructions in this regard. It was also stated in the e-mail that it is a landlord’s prerogative as to who they let their property to and they do not need to give a reason. The complainants submitted that they are two professionals who have been renting accommodation in this particular area of Dublin for over the past 10 years. They stated that they have excellent references from their previous landlord and from their places of employment. They found the incident with the respondent very humiliating and disturbing and felt that if every landlord and letting agency had the same attitude, there would be a serious lack of accommodation and high level of homelessness.
3.3 Following given notice on the ES.1 and ES.2 of their complaint to the respondent, the respondent sent a letter to the complainants stating that the apartment is not suitable for children due to safety reasons:
(i) No lift/stair access
The complainants viewed the apartment and it is not an apartment block. It is located on the second floor and does not require a lift i.e. does not have lots of stairs and would be similar to living in a standard two storey house.
(ii) No direct access to garden
There is no issue with access to the garden and the complainants do not understand why this is unsafe or unsuitable. During the apartment viewing when they were being shown the garden, they were able to access the garden by walking down the stairs and going out to the garden through the back door on the ground level i.e. similar to a standard house. The advertisement for the apartment also stated that the accommodation comprises the use of a lovely sunny rear garden.
(iii)Lack of storage for buggies/extra equipment
The complainants are at a loss to know why lack of storage is being used as a reason for claiming that the apartment would be unsafe or a reason to say it is not suitable for them. There is adequate storage in the property. During the viewing, they noted that tenants were using a room downstairs for storage e.g. bicycles. The complainants also submitted that buggies fold up neatly and could be stored in the apartment. The apartment is a large two bedroom/two bathroom apartment. During the viewing, they observed that there was plenty of adequate storage in the apartment. There is even a reference to storage in the advertisement i.e. double storage cupboard.
3.4 The complainants contend that the respondent claimed that the above reasons were based on a safety consideration and that the landlord made a safety decision. The complainants maintain that if the apartment is unsafe for resident children then it should not be rented out at all as it would also be unsafe for persons visiting that may have children with them. The advertisement for the property did not disclose that the apartment is unsafe or unsuitable for children. Ms. M states that when herself and her husband viewed the apartment, she was 6 months pregnant and visibly showing and she was not advised that it would not be possible to lease the apartment because she was pregnant. The complainants state that they as parents of a child do not see any reasons why this property was unsafe or unsuitable to live in with a child. They feel that the above reasons given are a complete fabrication made up afterwards to try to justify the discrimination. These reasons were never disclosed to them before e.g. not in the advertisement for the apartment, not during the viewing or during the telephone calls and e-mails thereafter.
4. Submission on behalf of respondent
4.1 The respondent did not attend on the day of the hearing and gave no explanation for its absence. In its submission, the respondent maintains that the advertisement did not constitute an offer to the complainant to rent the apartment nor did any conversation between the respondent and the complainants constitute an offer to the complainant to rent the property. It states that any contract entered into to let the apartment would have been made subject to the agreement of the landlord of the property. The respondent states that it had circa 200 enquiries on foot of the advertisement. The respondent contends that the assertion by the complainants that a young male employee should have been aware of Ms. M’s pregnancy status at the time she viewed the property is absurd. The respondent submits that at the outset, when they engaged the services of the respondent to let the property, the landlords of the property advised that it was not suitable for children for safety reasons. The respondent states that it noted this, along with some other criteria e.g. the owners wished to let the apartment to two tenants only, either a couple or two singles sharing. The respondent states in its submission that it did not interrogate the landlords in an attempt to discern whether there was latent discrimination behind their statement that the apartment was not safe for children.
4.2 Following the initial complaint by the complainants, the respondent spoke to the landlord to clarify the reasons why the apartment is not suitable for children. The landlord stated that the apartment in question is a flat in a period property. The house is a protected structure and the original sash windows to the front of the property by law may not be replaced with modern windows. The landlord does not believe that it can fully perform in its duty of care to their tenants where there are children or minors resident in the house due to the nature of the sash windows. The sash windows in both bedrooms are very low to the floor and the nature of the windows is such that there is only one single glazed pane in each of the two frames in each window. The respondent submits that even in a situation where a mechanism is fitted to prevent the windows from opening more than a small amount, there is still a potential risk of a child falling through the plate glass. The respondent submits that the landlord is not willing to take this risk and this is the primary concern. The landlord also has concerns as regards fire safety in the building. There is not adequate storage in the apartment for prams or buggies and the landlord has concerns that such items on occasion be left in the common hall or stair landings, potentially impeding exit routes for any or all tenants in the entire building in the event of a fire. There is no fire escape or direct access to the garden from this or any other apartment in the house. All routes to the exterior involve common stairs, landings and hallways. These are the concerns of the landlords, it is their building and part of their livelihood and they are entitled to protect themselves from responsibility for a potentially dangerous and tragic situation, as had been reported in the media in the weeks before this apartment was put on the rental market.
4.3 In its written submission, the respondent states that the landlords of the apartment are an elderly couple who have children and grandchildren of their own. They are fully aware of the needs of families with babies and small children and they do not deem this apartment suitable for those needs. They have made this judgement based on many years of raising children and many years of familiarity with the property in question, not on a 10 minute viewing of the apartment as the complainants did. The respondent contends that when it alerted the landlords to the complainant’s assertions, they were utterly shocked and saddened that their right to let their property to the most suitable tenant, with due concern for safety considerations, had been subject to what they perceive to be a cynical attempt to gain monetary compensation. The respondent submits that the complainants’ allegations can be categorically disproved by any investigation into the number of properties let to families by it. The respondent refutes the allegations out of hand and contends that it leases properties to families on a constant basis. The respondent maintains that the complainant’s version of events is not only subjective in the extreme but is dishonest by omission. Ms. R states that on each occasion that she spoke to the complainant, she offered to advise her of any other properties in the area that might suit her. In the respondent’s submission, Ms. R states that she is the mother of an eleven year old daughter and in a previous career was a Montessori teacher for seven years, and ran her own Montessori school for three of those years, she fully agrees with the landlords that the property is not safe for children. In conclusion, the respondent wholly refutes the allegations of discriminatory treatment on grounds of family status.
5. Conclusions of the Equality Officer
5.1 The matter referred for investigation was whether or not the complainants were discriminated against on the family status ground contrary to the Equal Status Acts. In reaching my decision, I have taken into account all the written submissions and oral testimony made to me by the parties in the course of my investigation into the complaint. Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3.- (1) For the purposes of this Act, discrimination shall be taken to occur—
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’
Section 6 (1) of the Equal Status Act, 2000 states that “A person shall not discriminate in - …(c) providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”
I am satisfied that the respondent was providing a service related to accommodation to the complainants and that it ceased to provide that service in respect of the relevant apartment. The reasons given by the respondent were that the landlords objected to having children in the apartment and subsequently it stated that it ceased to provide the service to the complainants on safety grounds. I find that the complainants have established a prima facie case of discrimination on the family status ground in accordance with Section 3 and Section 6 of the Equal Status Acts. Where a prima facie case of discriminatory treatment has been established, the burden of proof shifts to the respondent to rebut the presumption of discrimination.
5.2 The respondent did not attend the hearing and gave no explanation for its absence from same. I note that initially during a telephone conversation when Ms. R requested who the apartment was for, the complainants advised that the apartment was for them and that they were expecting a baby in three months’ time, Ms. R stated that this would not be possible as the landlords gave strict instructions that the apartment was not suitable for children and ideally, they wanted a couple or two professional persons sharing. The respondent gave no information or reasons why the apartment was unsuitable for children during this call. I note that when the respondent’s employee was showing the complainants around the apartment, there was no mention of lack of suitability for children and at that point Ms. M was 6 months pregnant. In a written submission, the respondent stated that the apartment was not suitable for children on the basis that there was no lift/stair access, no direct access to the garden and lack of storage for buggies and extra equipment. The respondent also contends that the apartment is a protected structure and the original sash windows to the front of the property by law may not be replaced by modern windows. It stated that the sash windows in both bedrooms are very low to the floor and the nature of the windows is such that there is only one single glazed pane in each of two frames in each window. The respondent submitted that overall the above reasons were based on a safety consideration and that the landlords made a safety decision. The respondent also submitted newspaper articles relating to a tragic situation where a child climbed out of a window on a 6th Floor apartment block and was killed a few weeks before this apartment was put on the rental market.
5.3 Having carefully examined the totality of the evidence in this case, I note that the apartment was available on a 12 month lease commencing 27 August 2012. There is no mention in the advertisement to state that the apartment is unsuitable for children. I note that Ms. M was 6 months pregnant at the time of viewing and there was no mention by the respondent’s employee during the viewing that the property was unsuitable for children. I am satisfied that by the time the lease would come up for renewal the complainant’s baby would, at that time, be circa 8 months old and would not be in a position to climb up and fall out of one of the windows as suggested by the respondent. Having viewed extensive photographs of the property in question, I am satisfied that it was a very spacious two bedroomed apartment with ample storage in the apartment including a double storage cupboard. Given the sequence of events, I find that initially when the complainants were refused access to leasing the property, they were not given any information or reasons why the property was unsuitable for children. In subsequent written documentation to the complainants, it attempted to justify the discriminatory treatment on the basis of safety considerations which I find under examination and scrutiny does not stand up. At a later stage, in its written submission to the Tribunal, it submitted for the first time that the property was a protected structure and the original sash windows to the front of the property by law may not be replaced with modern windows with the result that the property was unsafe and unsuitable for children. Given the totality of the evidence including the above inconsistencies in the respondent’s case and in the absence of any testimony by the respondent, I am satisfied that the respondent discriminated against the complainants in relation to access to rent the apartment on the family status ground. I find that at each stage, the respondent attempted to justify the discriminatory treatment by throwing in new reasons for the refusal to lease the apartment in question to the complainants. I find that the respondent has failed to provide a reasonable or adequate explanation for this refusal. On the day of the hearing, I found the complainants to be very cogent witnesses and they gave clear and frank testimony. I am satisfied that the complainants were deeply hurt and upset by the treatment of the respondent towards them and were very anxious when they attended other lettings of property subsequent to this incident. I find that the complainants have demonstrated prima facie evidence of discriminatory treatment which the respondent has failed to rebut.
6. Decision
6.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision.
6.2 I find that the respondent discriminated against the complainants on the grounds of family status. In accordance with the provisions of the Acts, I award the sum of €1,500 in respect of the effects of the discriminatory treatment to each of the complainants. I also order that the respondent reviews its policies and procedures to formulate guidelines for its staff and customers setting out how it complies with its statutory obligation not to discriminate. This should also set out any objective reasons that may be taken into account when considering the suitability of properties for letting purposes. In addition, I order that the respondent provides training for all its staff in the provisions of the Equal Status Acts.
Valerie Murtagh
Equality Officer
11 June 2014