ADJ-00005303

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005303

Parties:

Complaint:

Date of Adjudication Hearing: 4th January 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 22^nd July 2016, the complainant submitted a complaint to the Workplace Relations Commission pursuant to the Equal Status Acts. The complaint was scheduled for adjudication on the 4^th January 2017.

At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the time, date and venue of the adjudication. Having been satisfied of this, and waited some time for a late arrival, I proceeded with the adjudication in the absence of 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 of the Workplace Relations Commission, 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 asserts that he was discriminated against in the course of his occupation of a dwelling and in having to leave this accommodation.

Summary of Complainant’s Case:

The complainant outlined that this was a claim made pursuant to section 21 of the Equal Status Acts and on the grounds of race, age and gender.

The complainant works as a researcher in a third level institution and is a PhD candidate. He works long hours and would rarely be at home. On the 27^th May 2016, he sought rented accommodation in and around the third level institution. He saw an advertisement for a letting for €250 per month plus utilities. This was a house-share and he met with the person vacating the accommodation. At the interview, he also met with one other tenant and there were other tenants not then present. He was asked by the tenant vacating the dwelling to move in and the complainant handed over €350. This was made up of a deposit of €200 and €150 in pro-rata rent for the rest of the rental period.

The complainant took up occupation on the 1^st June 2016. Due to his hours of work, he rarely saw his roommates. There was a rota of duties to be shared and this included his obligation to clean the dwelling once a month. He carried out this cleaning duty on the 18^th or 19^th June 2016 and this took about an hour. It was at this time that he met the respondent for the first time. They had a discussion about paying €3 for household items, but the respondent looked at the complainant with disgust. The respondent asked the complainant not to touch anything as he might spread disease in the dwelling.

On the 20^th June 2016, the complainant encountered the three housemates in the kitchen of the dwelling. They said to the complainant that he would have to move out of the dwelling. They did not state any reason for this. They said that the complainant was a “criminal” and should not be there. The complainant replied by asking whether it was to do with his race and gender. He said that the reference to criminality was because of his Asian and Chinese heritage. This was the obvious explanation and the respondent or the other housemates did not offer any alternative explanation. He refused to move out as he had been told to move out because of his race. They argued for three hours. They said they would call the landlord and the complainant asked for his contact details. They refused to provide them and said he was not getting involved. The complainant again said that this was because of his race and they referred to the respondent being the “co-manager” of the rented dwelling.

At this stage and behind his back, the respondent entered the complainant’s room and took the complainant’s keys to the room and the dwelling. The complainant realised this when he later left the dwelling to buy groceries but could not get back in. He was locked out and sought the assistance from the local Garda station. After he had sought help from the Gardaí, he was allowed back into the dwelling where the respondent said that he would not accept rent from the complainant. The complainant challenged the respondent regarding taking the keys, but the respondent denied this. The respondent said that the landlord was standing by him. The complainant said that the landlord was complicit in this. The landlord attended the dwelling at 5.30pm and did not become involved. The landlord had been “confused” and “puzzled”. Later, the respondent had told the complainant to “f*** off” and refused to return the keys.

The complainant said that he had no choice at this stage but to move out. He spent the entire day moving his possessions to his office. He also reported the matter to the Gardaí and they said it was a civil matter. He had sought to pursue the matter via the Residential Tenancies Board, but they had not provided him with details of the landlord. He sent the ES1 form to the respondent on the 21^st June 2016 and there was no reply to this. He acknowledged that he received back the deposit he had paid. He saw that the respondent had placed an advertisement looking for a new tenant, where he stated “males only”. He said that the respondent collected rent from the occupants of the dwelling.

In respect of the grounds of discrimination claimed, the complainant referred to the gender ground and that a preceding female tenant had been treated better. In respect of the age ground, he said that he was older than other tenants. In respect of the race ground, he was not a white person.

The complainant outlined that rents were higher close to the large third level institution in which he worked. He was looking to pay €250 - €350 in rent. Since these events, he had to assess whether it was even worth applying for accommodation given the racist element to his treatment in this case. He was now discouraged from applying. He said that while he had been positively looking for accommodation, he was afraid of the repercussions. He commented that he has lived in Ireland since 2007 and he had encountered similar experiences in other accommodation and that it was a problem generally.

Summary of Respondent’s Case:

The respondent did not attend the adjudication and did not make submissions to it.

Findings and Conclusions:

The complainant asserts that he was the subject of discrimination by the respondent on the grounds of gender, age and race. The complainant complied with the notification provisions of the Equal Status Acts by sending a completed ES1 form to this respondent on the 21^st June 2016. The respondent did not reply and did not oppose the claim.

In respect of discrimination in the provision of accommodation, section 6 of the Equal Status Acts provides as follows:

6. (a) disposing of any estate or interest in premises, (b) terminating any tenancy or other interest in premises, or (c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities. (1A) Subsection (1)(c) is without prejudice to — (a) any enactment or rule of law regulating the provision of accommodation, or (b) the right of a person providing accommodation to make it a condition of the provision of that accommodation that rent supplement is paid directly to that person.

(2) Subsection (1) does not apply in respect of— (a) the disposal of any estate or interest in premises by will or gift ,... (c) 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, (d) 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, or (e) the provision of accommodation to persons of one gender where embarrassment or infringement of privacy can reasonably be expected to result from the presence of a person of another gender. (3) References in subsection (2) to the disposal of an estate or interest in premises or the provision of accommodation or of any services or amenities relating to accommodation include references to the termination of any tenancy or other interest in those premises or ceasing to provide such accommodation, services or amenities.

...

(5) Where any premises or accommodation are reserved for the use of persons in a particular category of persons for a religious purpose or as a refuge, nursing home, retirement home, home for persons with a disability or hostel for homeless persons or for a similar purpose, a refusal to dispose of the premises or provide the accommodation to a person who is not in that category does not, for that reason alone, constitute discrimination. (6) Nothing in subsection (1) shall be construed as prohibiting— (a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or (b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992, from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, civil status, disability, age or membership of the Traveller community.

(7) (a) Nothing in subsection (1) shall be construed as prohibiting, in relation to housing accommodation provided by or on behalf of the Minister, different treatment to persons on the basis of nationality, gender, family size, family status, civil status, disability, age or membership of the Traveller community.

(b) Nothing in paragraph (a) shall derogate from any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003 or any Act adopted by an institution of those Communities.  (8) In this section, ‘rent supplement ’ means a payment made under section 198 (3) of the Social Welfare Consolidation Act 2005 towards the amount of rent payable by a person in respect of his or her residence.

The first issue to address is the legal status of the complainant’s occupation. In evidence, the complainant said that the respondent was responsible for the collection of rent and refused to collect further rent from the complainant. The respondent was deemed to be the “co-manager” of the dwelling and told the complainant he had to leave the accommodation. Taking these facts together, I find that as a matter of law, the complainant retained the legal status of licensee and the respondent is a licensor. The complainant had a permission to occupy and to use the accommodation. He paid “rent” to the respondent. His occupation falls within the ambit of section 50(7) of the Residential Tenancies Act, where a licensee can augment their legal status to tenant.

The second issue to address is whether the complainant’s occupation falls within the scope of section 6 of the Equal Status Acts. In finding that it does fall within the scope of section 6, I note the broad scope of this section, in particular the reference in section 6(1)(b) to “any tenancy or other interest in premises”. This provision encapsulates the house share scenario led by the respondent, as presented in the evidence of the complainant. This form of license occupation falls under the “other interest in premises” provision of section 6(1)(b). Furthermore, I find that this occupation does not fall within the ambit of section 6(2)(d) as this cannot be said to be the respondent licensor’s home. This situation differs to one where an owner-occupier shares their accommodation with a housemate.

In assessing the claim of discrimination, I find that the complainant has established a prima facie case of discrimination on grounds of race and not on the grounds of age or gender. In fairness to the complainant, the race ground was the one he emphasised at the hearing. It is clear from his uncontroverted account of his conversations with the respondent that, prima facie, the treatment he received from the respondent was on the ground of his race, i.e. a person of Asian and Chinese race and heritage. There was insufficient evidence in relation to the claims under the grounds of gender and age. The complainant gave uncontroverted evidence of statements made by the respondent regarding disease and criminality, which are readily attributable, in these circumstances, to the complainant’s race. The complainant was forced to leave the dwelling when the respondent refused to return his keys, making his future occupation of the dwelling impossible. The respondent has not rebutted the inference drawn of discrimination from the prima facie case established by the complainant’s evidence. It follows that the claim of discrimination succeeds in respect of the claim made under the race ground.

In assessing redress, I note that the complainant was in occupation of his room for a short time. I also note the unlawful and discriminatory basis of his eviction from the dwelling. I note the impact this has had on the complainant in the current rental market and that he has been homeless for six months following these events. Taking these factors into account and the effects of the discrimination, I award redress pursuant to the Equal Status Acts of €5,000.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

CA-00006116-001

I find that the complaint made pursuant to the Equal Status Acts on the race ground is well-founded and the respondent shall pay to the complainant the amount of €5,000 as redress for the effects of discrimination.

Dated:   31/08/2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Equal Status Acts, Section 6 accommodation, Race ground