ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005360

Complaint for Resolution:

Date of Adjudication Hearing: 16th December 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

On the 30^th March 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Equal Status Acts. The complaint was scheduled for adjudication on the 16^th December 2016. The complainant was in attendance and the spouse of this respondent attended.

The complaint was initially made against the person who posted the advertisement and cites only his first name. The complainant later provided the names of this respondent and her spouse and they were both served notice of the adjudication hearing. The complaint was given two adjudication references (ADJ 2597 and ADJ 5360), each against one respondent, the husband and wife landlords.

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 has been discriminated against under the housing assistance ground because of advertisements placed on lettings websites by or on behalf of the respondent. The respondent, via her spouse, denies that they posted the unlawful advertisement or that this was done on their behalf.

Summary of Complainant’s Case:

The complainant outlined that he saw the advertised letting online on two websites when searching for accommodation. The advertisement stated “no rent allowance accepted”. He rang the number provided in the advertisement and asked to arrange a viewing. He mentioned that he was in receipt of rent supplement and the person to whom he spoke told him that rent supplement was not accepted. He describes this person as the landlord/agent. The complainant then contacted a lettings websites to raise the issue of the unlawful advertisement and they replied that they tried to check advertisements. The complainant then went to a Citizens Information Centre for assistance.

The complainant outlined that he sent the ES1 form by registered post to the person named in the advertisement. It was called for on the 25^th February 2016 but returned to him. The complainant outlined that he succeeded in getting the details of the respondents, the owners of the dwelling, via the Land Registry. This occurred on the 9^th September 2016. The complainant submitted that the respondents are liable to this claim because they are the owners of the property. Their excuse does not stand up as they must have known that the advertisement had been placed. He outlined that it must have been the respondents who collected the registered letter containing the ES1 form.

In respect of the impact this had on him, the complainant outlined that he has been going through counselling as a result of this matter. He had felt degraded, humiliated and it had made him feel worthless. He seeks redress in the form of compensation.

In concluding comments, the complainant outlined that the advertisement speaks for itself and that the respondents are liable as owners pursuant to section 3 of the Equal Status Acts. He said that it was significant that the advertisement were not free to place.

Summary of Respondent’s Case:

The respondent listed in this adjudication file did not attend the adjudication of the 16^th December 2016. She was represented by her spouse, the respondent to ADJ 2597.

At the adjudication, the representative of the respondent outlined that his sympathies were with the complainant. He said that as a landlord, he had six tenants who were in receipt of rent supplement. He would never use the term “rent allowance” as the name of the payment is “rent supplement”. He provided the full name of the person who placed the advertisement and said that this person had been the tenant of the dwelling referred to in the advertisement. This person had vacated the dwelling in April 2016 and he had discovered that it had been sub-let without consent to a group of students. He outlined that the rents of dwellings in this building were above the maximum payable under rent supplement, but they had a second building where all the tenants received rent supplement.

In respect of these proceedings, the representative of the respondent outlined that they had not received the ES1 form so the claim could not proceed. He said that the first they knew of the advertisement was the notice received from the Workplace Relations Commission of this hearing.

Findings and conclusions:

The claim relates to discrimination on the housing assistance ground, the tenth ground of discrimination provided in the Equal Status Acts and inserted by section 13 of the Equality (Miscellaneous Provisions) Act, 2015.

As amended, section 3B of the Equal Status Acts 2000-2015 provides:

“For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).”

As amended, section 6(1) and 6(1A) of the Acts provide:

“6.—(1) A person shall not discriminate in—

(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.”

It is clear that an advertisement stating “no rent allowance accepted” contravenes the above legislative provision and represents discrimination on the housing assistance ground. As a prospective tenant, the complainant incurred discrimination in not being able to pursue this letting.

The initial complaint was made against the person named in the advertisement and cites only his first name. The complainant later provided details of the respondents, the owners of the building in which the dwelling is situated. This is a building containing a number of dwellings, all rented by the same landlords. The complainant submits that the respondents must have known of the unlawful advertisement and they cannot evade liability. The respondents deny knowing about the advertisement or that they consented to the then tenant of the dwelling sub-letting or assigning his tenancy.

Section 42 of the Equal Status Acts provides as follows in respect of vicarious liability:

“42. — (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’ s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

            (a) from doing that act, or

            (b) from doing in the course of his or her employment acts of that          description.”

The issue to be determined in this case is whether the respondents can be held liable for the actions of the person named in the advertisements. The respondents identified this person as the then tenant of the dwelling. He is listed as the contact person for the advertisements. Having considered the evidence and submissions, I find that the person who placed the unlawful advertisements was not acting as agent for the respondents and the respondents cannot be held vicariously liable. I accept the evidence given at the adjudication that the first the respondents knew of the advertisements was the notification of the adjudication hearing date and that they had not consented to the person sub-letting or assigning his tenancy, nor had they agreed to the contents of the advertisements. The complainant pointed to the contents of the advertisements and asserted that a link should be made between the person who placed the advertisements and the building’s owners. In the circumstances, there is insufficient evidence of any such link to establish a relationship of agency or to establish vicarious liability for the discriminatory act.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint.

CA-00007644-001

Pursuant to section 25 of the Equal Status Acts, I decide that the claim is not well founded and that the respondent is not liable on grounds of vicarious liability, or otherwise, for the discriminatory act.

Dated:   29^th March 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Equal Status Acts – Housing assistance ground – Vicarious liability