ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004060

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 16/11/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

On the 21^st June 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Equal Status Acts. A hearing took place on the 16^th November 2016.

 The complainant attended the hearing as did a representative for the respondent.

 In accordance with section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The complainant alleges that she was discriminated against by reason of her Civil Status and her Family Status by the respondent, a letting agent, in that she was treated unlawfully in the provision of goods/services, that is she was refused accommodation. The date of the alleged discrimination was 18th April 2016.

The complainant notified the respondent using an ES1 form, dated 10th June 2016 (posted 17 June 2016). The respondent replied in a letter to the complainant on 18th July 2016, however as the complainant had moved address in the interim she did not receive this response (a copy of this letter was later received by the complainant through the offices of the WRC). The complainant filed a complaint which was received by the WRC on 21^st June 2016.

Complainant’s Submission and Presentation:

The complainant is a single mother. In the summer of 2016 she was in the process of finding somewhere new to live. This proved to be exceedingly difficult and the complainant spent many hours a day emailing letting agents and landlords regarding lets.

On the evening of 17th April the complainant emailed the respondent asking to view a particular two bedroom apartment.   The following day, the 18th April, the letting agent replied by email stating that viewing was at 5.30pm if the complainant wished to attend. The email went on to say that, "Please note the apartment is only suitable for two tenants. Kind regards"

The complainant replied to the above email as follows; "Thank you. I'm a single mum with one toddler. I'm looking to rent using hap scheme which means rent is paid directly to landlord's bank account from Dublin City Council. Could you let me know if this would be agreeable. Thank you."

Shortly after sending this email the complainant received a response email from the respondent which read; "HAP is acceptable but the landlord is looking for a couple here I'm afraid, apologies on this. Kind regards."

On receipt of this email the complainant took it that there was no point pursuing this apartment. For her the message was clear; the landlord wanted couples only and she, as a single mother, had no chance of getting the apartment; the email was a "firm no", a "flat refusal" and in her opinion to say anything else is "ridiculous". For her this was a case of a one parent family being refused access to housing.

Having taken this view she did not think there was any point in viewing the apartment. She did subsequently view a similar apartment in the same block and was of the opinion that the apartment would have been ideal for herself and her young daughter.

The complainant does not believe the letting agent's attitude related to affordability and in fact she is now living in accommodation which has the same monthly rental as had been sought for the apartment in question.

Respondent’s Submission and Presentation:

The respondent is a well-established, licensed, letting agent. The respondent's representative submitted that the complainant was not refused accommodation because she was a single mother and the allegation of discrimination is strongly denied. The company representative stated that he had interviewed the author of the emails referred to above and that there had been no intention to discriminate.

The representative explained that from a practical and economic view it is better to get two people to rent but if a single person can show they can afford the rent and have a track record that's fine. The major concern in renting out accommodation is affordability and profile.

In this instance the complainant was invited to view the apartment but did not attend. According to the respondent's representative if she had turned up, shown she could afford the rent and provided references then that would have been acceptable. If the complainant "had come back to say she could afford it, it would have changed the whole thing".

The respondent contended that the complainant had read too much into the email. If the respondent had received such an email he would have replied, "What's the problem? I can afford that."

The respondent did not know to whom the apartment had eventually been rented but re-iterated that they do not discriminate at all and that they rent to lots of different people. He stated that there are lots of other places where single parents are accommodated without any problems.

The representative was disappointed the communications between the parties had been so brief, as the matter could have been dealt with; if a response had been unacceptable to the complainant it the company would have dealt with it.

In concluding remarks the representative pointed out that in more than 20 years business they had never had a case taken against them on such grounds and that they simply do not discriminate.

Decision

Section 25 of the Equal Status Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision

Was the complainant discriminated against and if so was she discriminated against on one or both of the grounds as alleged?

Legislation involved and requirements of legislation

Section 38(A) of the Equal Status Acts, 2000 to 2004 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 she can rely on in asserting that prohibited conduct has occurred in relation to her situation. 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 this decision, I have taken cognisance of all the oral and written submissions made by the parties.

The complainant alleges that she was discriminated against in the provision of accommodation on two grounds; Civil Status and Family. According to the Act discriminations is:

Discrimination (general).

(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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.]

Section 6 of the Act prohibits discrimination in the provision of accommodation.

The two grounds cited by the complainant are (i) civil status and (ii) family status. According to the Act;

Civil status means, "being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved", S2 (1).  

Family status means, "being pregnant or having responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability", S2 (1).

Findings and Reasonings

The first question to be answered in this case is whether the complainant has established a prima facie case that she was discriminated against on the grounds as alleged?

There is no disagreement between the parties on the veracity of these emails but a great difference in the interpretation of the emails. From the respondent's perspective the emails do not indicate any intention to discrimination. For the complainant they are a definite sign that she was not wanted as a tenant due to her Civil and Family status.

In my opinion the email of 18^th with the words, "the landlord is looking for a couple here I'm afraid, apologies on this", is sufficient to establish a prima facie case that prohibited conduct took place. Whether conscious or unconscious these words are stark, the addition of the word 'apologies', in my view, only serves to bring closure to the communication. The message is clear; couples are fine, single people are not wanted. It would seem the complainant was treated less favourably than a couple would have been in these circumstances.

The allegation that the complainant was discriminated against because of her Family Status is not so clear. There is nothing in the emails from the letting agent to indicate that any prohibited conduct took place because of her family status.

As the complainant has demonstrated that a prima facie case exists that discrimination took place due to her Civil Status has the respondent produced sufficient evidence to rebut this case?

The respondent has put forward his view that the email did not indicate an intention to discriminate against a single person and that the complainant was reading too much into a few words. However, the respondent cannot interpret the email for the complainant, it is her interpretation that counts and I tend to agree with her interpretation.

In addition the respondent submitted at the hearing that if the complainant had attended the viewing or contacted the agency things might have been different, however it is my view that the damage was already done. The respondent's contention that a different outcome would have been forthcoming if the complainant's actions after the emails had been different, is purely hypothetical and as such is not relevant to this case.   The complainant was never asked nor did she have the opportunity to discuss affordability or track record as the matter was closed down in the email of 18^th April.

Decision:

In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision: that the complainant has established a prima facie case of discrimination on the grounds of Civil Status and this has not been rebutted by the respondent. I do not believe the complainant has established a prima facie case for discrimination on the Family Status ground.

 Therefore, as per Section 27(1) (a) I order the respondent to pay to the complainant €3,000, the equivalent of two months' rent, in compensation for the effects of the prohibited conduct.

Dated:   05/04/2017