ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003299

Parties:

Complaint:

Date of Adjudication Hearing: 18/09/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaint under Section 21 of the Equal Status Act 2000 (also referred to as ‘the Act’), against the Respondent to the Workplace Relations Commission (hereinafter ‘WRC’) on 1st May 2016. Pursuant to Section 25 of the Act, the Director General referred this complaint to me for adjudication. It was heard on 18th September 2017, along with ten identical complaints against the same Respondent under Adjudication File Reference ADJ-000006704. I gave the Parties an opportunity to be heard and to present any relevant evidence. The Complainant represented himself whilst the Respondent was represented by Arthur Cox Solicitors. As the Complainant was unrepresented, I outlined the relevant legal provisions and preliminary objection in lay terms. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration.

At the outset of the hearing, there was some discussion as to the correct naming of the Respondent. The Complainant had initially used a trading name on the complaint form and when requested to clarify, named a member of the Respondent’s staff, but at the hearing confirmed that he had intended to use its legal name. On foot of a letter dated 30th May 2017 from Solicitors for the Respondent confirming that the trading or legal name should properly be used and as all relevant witnesses were in attendance and hence there was no prejudice, I have used its legal name herein.

Background:

This complaint referred to Section 3B of the Equal Status Act 2000 (the housing assistance ground) and cites an example of alleged discriminatory advertising by a landlord and/or agent in relation to rental accommodation on the Respondent’s Property Website. There is no issue that the requisite notification and complaint were made within the required time limits. Discrimination under the race ground was also selected in the complaint form and the Complainant pursued a general complaint of racial discrimination and victimisation at the hearing. The Respondent contends that the WRC does not have jurisdiction to hear this complaint on the basis that it is not the correct Respondent. The Complainant contends that he is entitled to bring this complaint against the named Respondent. I deem it appropriate to deal with the complaints of discrimination and victimisation in turn.

Preliminary Objection on Jurisdiction to hear Discrimination Complaint

Respondent’s Position:

The Respondent submits that the WRC does not have any jurisdiction to hear this complaint as it is not the correct Respondent for the purposes of same. It contends that it is a Property Website which merely hosted the advertisement for the rental accommodation subject to this complaint, and is not the provider of such accommodation. The Complainant is not one of its clients and it did not provide any other goods or services to him. The Equal Status Act 2000 only affords a cause of action for discrimination against the provider of goods or services under Section 5, or against the provider of accommodation under Section 6. Therefore, it could not be the correct Respondent for the purposes of this complaint under any grounds. It had also responded to the Complainant’s notification by setting out its position in relation to the subject-matter of this complaint. The Respondent further denies any racial discrimination and contends that it’s staff were unaware of the Complainant’s race. It also concurred with the WRC’s position that only the Irish Human Rights and Equality Commission (IHREC) can refer a complaint of discriminatory advertising to the WRC.

Complainant’s Position:

This complaint form referred to Section 3B of the Equal Status Act 2000, which was introduced by the Equality (Miscellaneous Provisions) Act 2015 with effect from 1st January 2016, to provide for the additional ‘housing assistance ground’ in relation to the prohibition of discrimination in the provision of accommodation under Section 6(1)(c) of the Act. The complaint form cited wording to the effect that social welfare payments were not accepted, used within an advertisement for a rental property on the Respondent’s Property Website, as constituting discrimination against the Complainant as a Social Welfare recipient. Upon receipt of this complaint form, the WRC wrote to the Complainant stating: “The complaint cannot be processed as an individual cannot lodge a general complaint of discriminatory advertising under the Equal Status Acts contrary to Section 12 of the Acts. Where a person published or displays or causes to be published or displayed, an advertisement which indicates prohibited conduct (discrimination), the Irish Human Rights and Equality Commission (IHREC) may lodge such a complaint to the Workplace Relations Commission for Adjudication. In the circumstances, the complaint/dispute cannot be entertained by an Adjudication Officer.” The Complainant responded stating that this complaint was not a ‘personal’ complaint and that he was advised that he is eligible to pursue it as he is currently seeking accommodation and in receipt of Rent Supplement and Social Welfare. The Complainant was afforded a hearing of this complaint.

At the hearing, the Complainant reiterated his position as set out aforesaid. He confirmed that when searching for rental accommodation on the Respondent’s Property Website, he came across the advertisement in question, which he considered to comprise of prima facie discrimination against him as a Social Welfare recipient. He said that he had telephoned the Respondent on various occasions (although he could not provide specific dates) complaining about the advertisement in question. He said that he was treated abruptly and/or was put on hold. He made other allegations pertaining to discrimination on the ground of race contrary to Section 3(2)(h) of the Act in his written submissions. Notably, the Complainant did not seek to assert that he had contacted the provider (landlord or agent) of the rental accommodation in question with a view to availing of same. In addition to asserting his entitlement to bring this complaint under Section 6 of the Act, he also contended that he was entitled to pursue it under Section 5 of the Act, which prohibits discrimination in the disposal of goods and provision of services to members of the public. When questioned as to how the conduct complained of fell within Section 5 of the Act, the Complainant was unable to confirm what goods or services the Respondent was providing to him.

Findings and Conclusions on Preliminary Objection:

In order to determine whether the WRC has jurisdiction to hear this complaint, it is necessary to assess the wording contained in the complaint form along with the Complainant’s evidence and written submissions. In summary, he is objecting to the Respondent’s hosting on its Website, advertisements by landlords/agents for rental property which contain wording to the effect that social welfare payments are not accepted in relation to rental properties. Having considered the wording contained in the complaint form along with the Complainant’s evidence and written submissions taken at their height, I am satisfied that it could only constitute a complaint of discriminatory advertising pursuant to Section 12 of the Equal Status Act 2000 which provides:

“(1) A person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct or might reasonably be understood as indicating such an intention.

(2) A person who makes a statement which the person knows to be false with a view to securing a publication or display in contravention of subsection (1) shall, upon the publication or display being made, be guilty of an offence.

(3) In subsection (1), “advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing or display of advertisements shall be construed accordingly.”

Section 36 of the Irish Human Rights and Equality Commission Act 2014 provides the Irish Human Rights and Equality Commission (IHREC) with exclusive power to enforce Section 12 of the Equal Status Act 2000, and Section 23 also gives the IHREC exclusive power to refer complaints arising under this Section to the WRC. Therefore, I am satisfied that as an individual member of the public, there is no legal basis upon which the Complainant can pursue this complaint against the Respondent to the WRC. In the absence of any evidence supporting same, I am also satisfied that the Respondent was not providing any goods or services to the Complainant within the meaning of Section 5 of the Act or accommodation within the meaning of Section 6 of the Act, and it therefore follows that he cannot sustain a complaint of discrimination on the ground of race under Section 3(2)(h) of the Act. I therefore find that this complaint is misconceived within the meaning of Section 22 of the Act, providing for the dismissal of a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Decision:

Based upon the aforesaid reasoning, I find that this complaint of discrimination is misconceived within the meaning of Section 22 of the Equal Status Act 2000 and dismiss same accordingly.

Victimisation Complaint

Complainant’s Position:

The Complainant referred to the aforesaid conduct as both “discriminating against me and victimising me” within the complaint form and underlying notification. At the hearing, he confirmed that his complaint of victimisation arises from the abrupt manner in which he was treated during telephone calls to the Respondent’s staff when he rang its Office to ask the Respondent to desist from hosting discriminatory advertisements. He said that in the course of these telephone calls, he had either threatened to refer a complaint to the WRC under the Equal Status Act 2000, or had referenced existing complaint/s before the WRC. He was of the view that the Respondent’s staff had subjected him to less favourable treatment in retaliation, contrary to Section 3(2)(j) of the Act and the Respondent is vicariously liable for same. Although his written submissions contained quotes attributed to various staff members when responding to his calls, in direct evidence, he was unable to provide any specific details including dates or precisely what they are alleged to have said.

Respondent’s Position:

The Respondent submitted that there was no evidence of victimisation against the Complainant and accordingly, he had not established a prima facie case of victimisation within the meaning of Section 3(2)(j) of the Equal Status Act 2000. One of the staff members who could be identified as taking a telephone call from the Complainant and had also written to him, gave evidence confirming that she had handled any calls from the Complainant professionally. This was not substantially contested.

Findings and Conclusions:

Section 3(2)(j) of the Act provides for the victimisation ground and requires less favourable treatment to be shown as between any two persons, where one (i) has in good faith applied for any determination or redress provided for in Part II or III, (ii) has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act, (iii) has given evidence in any criminal proceedings under this Act, (iv) has opposed by lawful means an act which is unlawful under this Act, or (v) has given notice of an intention to take any of these actions and the other has not. Section 38A of the Act sets out the burden of proof which applies to all claims of discrimination including victimisation and requires the Complainant to establish, in the first instance, facts from which the victimisation alleged may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut that inference. Aside from the potential time issues arising from the lack of specificity as to when the alleged telephone calls were made, I am satisfied that the Complainant has not given cogent evidence of any conduct by the Respondent giving rise to a prima facie case of victimisation.

Decision:

Section 25(4) of the Equal Status Act 2000 requires that I make a decision in relation to this complaint. Based upon the foregoing, I find that the Complainant has not established a prima face case of victimisation in relation to any of the aforesaid complaint and dismiss same accordingly.

Dated:   23rd February 2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Section 22 Equal Status Act - Misconceived - Discrimination - Victimisation