Equal Status Acts
DECISION NO: DEC-S2016-017
Dwayne Keogh
V
Dara MacCarthy
File No. ES/2013/0057
Date of Issue: 9 March 2016
Keywords Equal Status Acts – Discrimination – Gender, Marital Status , Family (now Civil) Status, Age, Race-
1 Delegation under the Equal Status Acts
1.1 The complainant referred his claim against the respondent under the Equal Status Acts on 5 June 2013. On 12 March 2015 in accordance with his powers under section 75 of the Employment Equality Acts, the Director then delegated the case to me, Hugh Lonsdale, 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, on which date the investigation under section 25 commenced. Written submissions were received from both sides and I proceeded to a hearing on 22 April 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
2. Complainant’s Submission
2.1 The complainant submits that on 5 April 2013 (a Friday) he viewed a basement apartment which was separate from the main house, with his mother. The respondent was the landlord. During the viewing the complainant’s mother said that the complainant was a separated man. At the end of the viewing the complainant said he would take the property for rental and it was agreed that he would drop off the deposit etc the following Tuesday.
2.2 The following Tuesday (9 April) the complainant went back to the property with his mother and handed over the deposit and one month’s rent. During this meeting the respondent said the complainant was taking the property as a ‘Private Room Rental’ which was not subject to the PRTB.
2.3 The complainant submits that between 10 to 18 April he moved in gradually. Then on the weekend of 19 – 21 April his twin boys (14 years of age) stayed with him. He submits they stay with him every other weekend. They slept in the sitting room. On the Monday morning the respondent rang the complainant to ask who were those young guys with you over the weekend. The complainant explained who they were and where they were sleeping. The complainant submits the respondent said he was not planning a family rental. The complainant explained he was separated and his sons stayed with him every other weekend. The complainant rang the respondent back and asked why he said “young guys” as he thought this comment indicated the respondent thought his children were not his as they were a different colour. He told the landlord the children were coloured because their mother is black Kenyan. The respondent said he wasn’t expecting a family to move in.
2.4 The complainant submits the respondent rang back and said the situation was not going to work for him. He said he had a daughter and he would be worried about young boys hanging around. The respondent submits this is discriminatory towards his sons, because of their colour. The respondent said he would give all the money back and give the complainant time to move out. He moved out on 23 April 2013.
2.5 The complainant submits he was treated badly for being a separated man and his children because of their colour. He considers this discrimination on the following grounds:
· Race: because of his children’s skin colour,
· Gender: because his children were unacceptable as they were male,
· Age: his children were 14 and they were viewed as dangerous teenagers,
· Marital Status: because he is a separated man, and
· Family Status: because he is a parent of children under 18.
3. Respondent’s Submission
3.1 The respondent submits that the Complainant obtained the flat by not disclosing a relevant fact; that he is a parent of 2 teenage boys. Also, he assumed they could sleep on the floor. The respondent lives with his 12 year old daughter ½ time.
3.2 The accommodation is a 1 bedroom basement flat which is suitable for a single person or a couple. It was taken on a ‘room to rent’ scheme and the complainant said it was for single occupancy. At no stage did the complainant say he had 2 teenage children and the respondent submits that if he had then he would have said the flat was not fit for a family rent.
3.3 The respondent saw the children leaving the flat so he rang the complainant, who said that his children and his private life were none of the respondent’s business. The complainant rang him back and said his children were coloured and explained the family history. The respondent submits that the complainant’s mother did not tell him about the children when the flat was first viewed.
3.4 The respondent rang later and said he had not known about the children and the property was not fit for this purpose. He gave the complainant a month’s notice but said he would completely refund the rent and deposit. He said there would be no bad feelings. He did have a conversation about teenage boys with the complainant. He did not meet the complainant’s children and he did not say anything about them. Nor did he mention his daughter’s safety.
3.5 The complainant moved out the next day. The complainant initiated a heated conversation about his children and the respondent, with his daughter present, spoke about the capacity of the flat. The following day the complainant returned and the respondent paid back all the money.
3.5 The respondent submits that the complainant never said one word about race and he did not allow it to influence him.
3.6 The respondent submits that he rented the flat to a man and the accommodation was not suitable for children; it was not fit for a family. He never made any comment about ‘safety’ regarding teenagers.
3.7 The respondent submits he was unaware of the complainant’s marital status.
4. Findings and Conclusions
4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the gender, civil status, family status, age and race grounds).... A person is treated less favourably than another person is, has been or would be treated.”
4.2 Section 38A (1) provides that the burden of proof is: "Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 The respondent agreed to rent out a flat to the complainant. The complainant contends the respondent became aware that he was separated when he first viewed the accommodation. The respondent denies this. It is, however, clear there was no discussion about the complainant’s sons staying with him overnight. The complainant contends this was his own personal business. The respondent contends the accommodation was not suitable for the two sons to stay; that the flat was one-bedroomed and suitable for a single person or a couple.
4.4 The complainant was asked to leave the flat because the respondent did not want his sons to stay there overnight. My conclusion is that this establishes a prima facie case of discrimination on the grounds of family status. It is therefore up to the respondent to rebut the presumption of discrimination.
4.5 As stated above, the respondent asked the complainant to leave the accommodation because he did not want the complainant’s sons to stay there overnight. He states this was because there was only one bedroom and he considered it suitable for a single person or couple only. The respondent was unaware the complainant’s sons would be staying overnight before it happened and it is clear to me that he would not have rented to flat to the complainant if he had known. Equally, I am clear he would not have rented the accommodation to anyone else who intended to allow other people to sleep over in a temporary bed on anything other than a very casual basis.
4.6 In an earlier decision issued under the Equal Status Acts, DEC-S2003-40/41 the Equality Officer stated:
“I am satisfied that on the balance of probabilities the request to leave and the Notice to Quit were issued in accordance with the normal practice of allowing couples to stay short term by arrangement, even though no arrangements had been attempted on behalf of Ms Wesemann. This normal practice of allowing couples to stay short term is a facilitation which has been granted in spite of the size of the premises. I find therefore that the requests were not based on either of the discriminatory grounds alleged but that it was because it was normal practice and because of Mr Cassidy’s conduct and manner.”
4.7 In this claim I conclude that a similar ‘normal practice’ was the reason behind the respondent asking the complainant to leave. The ‘normal practice’ being that, because of the size of the accommodation, the respondent did not want anyone, other than the tenant/s (being a single person or a couple) to sleep over. It is my belief that if a tenant wanted a friend to stay over in a temporary bed on a regular basis the respondent would have acted in the same way. Therefore the decision was not based on the complainant’s family status and I find the respondent has rebutted the case and he did not discriminate against the complainant.
4.8 Having carefully considered all the evidence I can find nothing to connect this claim to any of the other grounds cited.
5 Decision
In reaching my decision, I have taken into account all of the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision, that:
· the complainant has failed to establish a prima facie case of discrimination on the grounds of race, gender, age and marital (now civil) status, and
· the complainant was not discriminated against by the respondent on grounds of family status contrary to section 3 (2) of the Equal Status Acts, 2000-2015. .
____________________
Hugh Lonsdale
Adjudication Officer/Equality Officer
9 March 2016