ADJ-00018069

Complainant

Respondent

Parties

Derek Tunney

Noeleen Hyland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00023220-001

14/11/2018

The Complainant submitted a complaint that he had been discriminated in the provision of accommodation due to his gender; the Complainant is a man.   The complaint was lodged with the WRC on 14 November 2018.

The Complainant submitted that he made an application for an apartment advertised on the internet. The ad stated a gender specific applicant would be selected. The Complainant received an email reply from the Respondent, stating, “only woman”.   The Complainant asked the Respondent to review this decision. He received another email response from the Respondent refusing his application based on his gender. The Complainant sent an ES 1 Form to the Respondent but got a solicitor’s letter not an ES 2 Form in response.

In direct evidence at the hearing the Complainant stated that it was his view that he had been discriminated by virtue of his gender.   Finding accommodation is very difficult and this accommodation was in exactly the right area for him.

He was unaware at the time that the accommodation on offer was in the family home of the Respondent.

The Complainant stated that he understood the Respondent’s argument but pointed out that he would have been able respect the privacy of others in the house if he had stayed there.

The Complainant had since found somewhere else to live. 

The Respondent stated that she is a widow living on her own in the family home. It is a three-bedroomed house, with one toilet, one shower and one small sitting room. The Respondent had decided to rent out two of the rooms in her house to try and supplement her income. She went to an agency and they advertised the rooms for her, stipulating that the rooms were only available to women to rent.

The Respondent put forward that as it her family home and because of embarrassment issues that might be caused by a person of the other gender living in the house, she was exempted from the legislation.

The Respondent stated that she is open and tolerant and would never want to discriminate.

The Respondent concluded by stating that this was a private house and that she should have the right to decided who lives in it with her and that the ad had been made in good faith.

Establishing a prima facie case.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

“It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instance I find that the Complainant has passed the three-tier test; firstly, he is a man, secondly, he has established that the treatment alleged has occurred and thirdly this treatment is less favourable than that which would have been afforded to a woman.

The onus now shifts to the Respondent to rebut the allegation.   The Respondent stated that she believed she was allowed rent out the rooms in her home to women only to prevent embarrassment issues arising and because the accommodation being offered was in the family home.

I find that the accommodation referred to is not “separate and self-contained.”

Section 6 (1) of the Act states:

Disposal of premises and provision of accommodation.

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.

Section 6 (2) of the Act states:

(2) Subsection (1) does not apply in respect of—

( 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 ]

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.

Section 6 (2) (d) & (e) of the Act allows for circumstances just like those outlined by the Respondent in this case. Therefore, I find that the Complainant has not been discriminated against in this instance.

The complaint is not well founded.

Accommodation, advertisement, private house, embarrassment.