ADJUDICATION OFFICER DECISION

A Tenant –v- Letting Agency.

Adjudication Decision Reference: ADJ-00006003

Complaint for Resolution:

Date of Adjudication Hearing: 06/02/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act and 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.

Complainant’s Submissions:

On the 8th September 2016, The complainant signed an offer to lease a flat at 33 North Frederick Street, Dublin 1 in the presence of an employee of the respondent. The complainant was subjected to a vetting process which was carried out by the respondents on behalf of the landlords.

The respondent had advertised the aforementioned flat on Daft website in July 2016. As part of this vetting process, he received an e-mail from the respondent on 22 July 2016.He was asked to complete it as soon as possible. The Tenants History Sheet/Tenants Information Sheet which was attached to this e-mail.

In the main body of the e-mail, the following was stated: "References are required as soon as possible. Which should include: Work References: Landlord References: Bank References or 3 most recent monthly statements: Photo ID". He did supply The respondent with a work reference on 8 August 2016 as requested, prior to signing the offer to lease.

On the aforementioned Tenants History Sheet/Tenants Information Sheet there was a question, "Do you have children (what ages)". He filled it out and returned the completed form by hand to the respondent on 25 July 2016.

On 25 July 2016, he received an email from the respondent which stated the following: "Could you please send on an attachment of three Month's pay slips/bank statements, work references and can you confirm when you have paid a deposit”. He did not want to give out details of my bank account balance so he supplied the respondent with photocopies of three most recent payslips by hand on 25 July 2016.

He considers the requirements imposed on him by the respondent to divulge details of my family status and their employment related requests (in conjunction with renting a flat at 33 North Frederick Street) amounted to discrimination under the Equal Status Acts.

On 11 August 2016, He withdrew his offer to lease the flat. On 16 August 2016, I received an e-mail from the respondent stating "In relation to your deposit, this will be refunded once a tenant has been found. We are actively looking at the moment and we had a showing today and tomorrow” (This security deposit amounted to €950).

To the best of his knowledge The flat was occupied by new tenants in or around 24 August 2016.

On 24 September 2016, he e-mailed forms ES-1 (completed) and ES-2 to the respondent . To date, he has not received a response from the respondent.

On 11 November 2016, he received an e-mail from the respondent which stated: "The landlord is also entitled to cover all expenses to finding a new tenant. Re-letting Fees €968.63 Advertising €45. This was deducted from your deposit."

He states that the respondent changed their mind with respect to the return of the deposit after receiving notification of a possible complaint under the Equal Status Acts (by way of the ES-1 form furnished on 24 September 2016). He contends that this action was retaliatory and amounts to victimisation for having notified them of his intention to pursue a complaint under the Equal Status Acts. The respondent it is alleged is the beneficiary of the security deposit paid.

The complainant relies on the case of CHEZ Razpredelenie Bulagria AD –v- Komisia za Zashtita ot diskriminastsia 2015 EUECJ C-83/14 stating that the court found that the placing of electric meters in the district mainly inhabited by members of the Roma community at a height of 6 to 7 meters as opposed to 2 meters in other district indirect discrimination.

Respondent’s Submission and Presentation:

The complainant has no prima facia case against the respondent. The complainant was not discriminated against. The complainant provided the information necessary following which he was offered a lease on the property. He signed that lease, paid his deposit and was free to move in. The hypothetical status the complainant refers to cannot be relevant for the purposes of this claim. The fact of the matter is, he was offered a lease, did sign that lease and was free to take up possession of the property.

In relation to the deposit, the respondent is not the beneficiary of the retained deposit. The Landlord is. It was explained to the complainant why the deposit had to be retained. It is submitted that the retention of the deposit is justified based on the costs involved in securing a new tenant. An invoice was sent by the letting agency to the landlord on the 26 August, 2016 in relation to the costs associated with securing a new tenant. The invoice was in the amount of € 966.63. The complainants ES-1 form was furnished in September.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

 
21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.

(2) Before seeking redress under this section the complainant— 

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress by referring the case to the Director,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

The complainant states that he has been discriminated against by the respondent on the following grounds;

• Family Status.

• Housing Assistance

• Provision of goods and services

• Accommodation

   

  The complainant in evidence stated that he sought to rent an apartment from the respondent. He was given a form to fill out which contained questions which he found discriminatory. He was asked if he had any children, to given a reference and to supply proof of income. He did supply this information and was offered a lease on a flat. He paid his deposit and signed the lease. He stated that if he had children, or if he didn’t have a job or if he was in receipt of housing benefit the situation might have been different. He is of the opinion that the mere fact that those questions are on the letting form is discriminatory of itself.   He also takes issue with the retention of his deposit. He feels that the retention of the deposit is victimisation based on the fact that the respondent only changed its mind when they received the EES-1 form.

   

  I differentiate this matter from CHEZ Razpredelenie Bulagria AD –v- Komisia za Zashtita ot diskriminastsia 2015 EUECJ C-83/14 relied on by the complainant, based on the lack of comparator. In that matter, the residences in the subject district were deemed to have been treated less favourably than those in other districts in relation to the height the meters were installed at. The complainant herein has not stated who he has been treated less favourably than. Nor has he shown that the respondent would have discriminated against him if he did have children or was in receipt of housing assistance. The fact of the matter is he was offered the lease, signed it and took up possession.

   

  I am satisfied that the decision to retain of his deposit was made for financial reasons and was made prior to the respondents receiving the ES-1 form. That is evidenced by the invoice sent to the Landlord in August, 2016. The ES-1 form was served after that date.

   

  In all of the circumstances I find that the complainant has failed to establish a prima facia case of discrimination against the respondent.

   

  The complainant’s claim fails.

    

Dated:   12^th April 2017