Complainant

Respondent

Anonymised Parties

Tenant

Landlord

Representatives

Self

Son

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028124-001

01/05/2019

The complaints are of discrimination on grounds of : race; harassment as defined and Section 12(1) (advertising)of the Equal Status Act 2000-2018.

Medical evidence was provided to the WRC detailing the serious and ongoing health issues of the Respondent which indicated he was unable to travel to the hearing. A postpone[JH-E1] ment was granted on these grounds in January 2020. However, the hearing was then rearranged for March 2020. A solicitor acting on behalf of the Respondent as his client, advised that the Respondents son would represent him ,if this was acceptable. Section 25A of the Equal Status Act allows – A party (whether Complainant or Respondent) to proceedings under section 24 or 25 may be represented by any individual or body authorised by the party in that behalf). Based on the solicitor’s correspondence and as provided for in the Act, the Respondents son represented him at the hearing.

The events described in this case occurred in January 2019. The Complainant wrote to the Respondent using a form ES1 on March 15th, 2019 advising the Respondent of her intention to refer a complaint under the Equal Status Act. The Respondents son replied to the notice on April 8th, 2019. A complaint was lodged with the Workplace Relations Commission on May 1st, 2019.

Having regard to all the circumstances of this situation I have decided to exercise my discretion and to anonymise the parties.

The Complainant is a   South American student at a University. From March 20th, 2018 to February 20th, 2019 she was a tenant in a house . The Respondent was the landlord. There was no written or signed tenancy agreement between them. Each room was rented separately, and she paid the rent to an account of a named third party, not in the name of the Respondent.

The interactions with the Respondent which led to the complaints commenced on January 13th, 2019. On that date the Respondent visited the house and the Complainant informed him and his wife that she would be leaving the accommodation. She suggested arranging for a replacement tenant as had occurred in the past as this way she could recover some of her rent if there was no delay in a new tenant taking over her accommodation. The Respondent had no difficulty with this suggestion and the Complainant asked her housemates if they knew of anyone who might be interested. Another tenant who is from India(B) and had moved in six days before said she thought she knew of someone. They arranged for that person(V) to visit the house. On January 19th there was a telephone conversation between the Complainant and the Respondent. Again, she mentioned moving out. It is the Complainants case that during that conversation the Respondent spoke about not wanting tenants who were ‘coloured’ or from ‘Africa or Syria’ or’ places like that’. When she asked why, it is her evidence that he replied ’they might not be as skilled as people like us to live in a house’. She replied that she is from Brazil,(B) is from India and the third tenant (C) is half Dutch. He referred to neighbours not wanting coloured people. The Complainant asked him ’Aren’t we all coloured once we come to Ireland?’ to which he replied no, I don’t think so. He spoke about a hotel which was burned down to avoid it being occupied by asylum seekers and he said he did not want people throwing stones at his windows-he did not want the ‘wrong kind of people’ living in the house. The Complainant stated she was very upset by this call and informed (C) of the details of the conversation.

The potential new tenant(V) called as arranged the following day. The Complainant said she did not want to cancel it as it would have made her complicit in racism. (V) liked the house and wanted to move in and agreed to the conditions. On January 21st, the Complainant rang the Respondent to inform him that she had a replacement tenant. He asked where (V) was from and she replied India adding information about her educational background and references. The Complainant stated that the Respondent asked her ‘ is she coloured’ and when the Complainant would not reply, he asked ‘what is the complexion of her skin’. She replied ‘she is like (B)’ meaning the other Indian student who was already in the house and whom he had not met before. He would not approve of (V) moving in.

The following day, the Respondent called (B) and gave her notice of eviction. At that stage she was in the house just ten days. The Complainant understands that the Respondent told (B) that he was going to refurbish the house. The Complainant said that oil had recently been purchased, a new internet contract was provided, there was no previous mention of a refurbishment. Later he said that he was planning to move back to the City. Later he said he was going to refurbish the house for a family as he did not want to rent rooms anymore. None of these options were mentioned until her conversation with him regarding (V) and her refusal to look for the type of tenant he wanted in the house.

The Complainant remained on in the house to support (B) who had to find other accommodation. She tried to get assistance from various agencies including the Gardai to see if the eviction of (B) could be prevented by any of them and found that nobody could help them. The language of ‘landlords can do what they like’ was used to her. She was told that she could make a complaint to the Workplace Relations Commission which she did.

After she had submitted her complaint she received correspondence from the Respondent in which he apologised, said he did not remember, that he had never insulted anyone before.

Witness Evidence.

The Complainant provided a witness-Q who was previously a tenant in the same house with the same landlord. She explained that she lived in the house for around two years. The house was empty when she and two other people, all Irish, started to rent at the same time. They had met the Respondent and his wife and got on very well. He was very decent in leaving the house vacant for a few weeks while they moved in. She had no issue with the Respondent while she was a tenant. On reflection while not exactly sure of the dates when she lived at the house, she believes it was sometime in 2016-leaving early in 2018. Asked by the Adjudicator, she does not recall having a signed tenancy agreement or receiving a number for the Residential Tenancy Board at the time.

At some stage, one of the tenants was leaving and the Respondent asked the remaining tenants to get a replacement. They advertised. A man came, he was very nice, interested in becoming a tenant and she told the Respondent. He asked if the man was coloured and when she said yes, the Respondent said he did not want him, to get someone else. He said that he wanted only Irish professional people and she told him that was not possible. They made an excuse to the man and they found a guy who was French instead. The Respondent asked the same question about his colour and they said he was French, Arabic. Asked by the Adjudicator was he white- she replied-borderline. Asked if the Respondent ever met that tenant the witness replied she did not think so. When the witness was leaving one of the tenants found the Complainant to fill the vacancy.

The summary of the witness testimony contains testimony provided in response to the Complainant, Respondent Representative and the Adjudicator.

The Complainant submitted a written signed statement from a former tenant at the house. In that statement, she wrote that she had overseen the process of recruiting two replacement tenants, one of them the Complainant. When she herself was moving out and looking for tenants, the Respondent requested that she find ‘Irish tenants that were working professionals.’

Details of the complaints:

A.      Discrimination based on race:

1.       The Complainant described the comments made by the Respondent and his actions in refusing (V) as a tenant and then evicting the tenant from India (B) represents racial discrimination of them. In her case, the implication was that as someone from Brazil, she was by extension somehow inferior to Irish Nationals and therefore the remarks had the effect of displaying a discriminatory attitude towards her.

2.       The Complainant was satisfied from the evidence of her witness at the Hearing and a written statement signed by another previous tenant in the same house that the behaviour she experienced occurred previously and was therefore repeated(repetitive) behaviour on his part.

3.       While appreciating that the Respondent is ill, the ailments described by medical practitioners do not, based on her own family experience affect the mind of a person with those ailments and do not explain his conduct.

B.      Harassment

1.       The Complainant felt she was harassed by being told to find a tenant and then told she must comply with the Respondents racist attitude towards certain types of tenants. She felt responsible for and stressed by the refusal to allow (V) into the house-the Complainant had to explain this and give reasons for the Respondent’s decision to (V). She felt personally responsible for and stressed by the eviction of (B) who she felt was evicted because of the Complainants refusal to comply with the Respondent when he told her that he did not want certain types of tenants. If she had not stood up to him, (B) whom he had not met, would not have been evicted. She described the conduct of the Respondent and the impact of his behaviour as harassment. Whereas he did not say anything to the two women of Indian Origin, he expected her to do it, to be the middle person and to accommodate his discriminatory preferences.

2.       The Complainant contended that the racist conduct of the Respondent created an intimidating, offensive environment for her.

C.      Prohibited Advertising

1.       The third part of the complaint was concerned with the expectation on the part of the Respondent that the Complainant would look for a tenant or tenants on behalf of the Respondent who were Irish/white, in breach of the legislation.

The Complainant believes that she has submitted a prima facie case against the Respondent.

In terms of a remedy, the Complainant said she did not bring this case for money for herself. She wanted the Respondent to see that what had done was not acceptable, was wrong and having seen others looking for accommodation treated in the same way she would like to address that. She did not want to let it go, he had done it before, if someone did not challenge it then it is behaviour as usual.

While she understands that she cannot say what is to be decided, she would like to see the Respondent make a donation to the anti-racist network.

Asked her position on the disclosure of names in the Decision, the Complainant said she did not mind either way, she had much support from friends and they knew she was taking the case.

On behalf of his father( the Respondent), his son as his representative , had written to the Complainant in April 2019 stating ‘I don’t know much about what you wrote. I am concerned about my dad’s health he is on a lot of medication and receiving treatment at the moment(list enclosed). Plus considering he is 79 years of age. In the past 30 years he never had an issue with any tenant. He has a number of houses. I do not know if it is his health and medication that has caused this issue. Please be sympathetic on this issue’. In addition to writing the letter he had also telephoned the Complainant. His father had offered efforts to settle the matter in some way and this was still his position. At the hearing, his son gave further details of his father’s condition that he was in hospital in January 2019, adding that there was a deterioration over the past year or so and certainly in recent months. He referenced dementia although he did agree there is no reference to this condition on the medical opinions submitted to the WRC. In his experience over recent months his father could say things, and this could explain what had been said. He posed the question that if it was the case as described, how come this was the first complaint ever regarding this type of behaviour in all the years he was renting to tenants. As he was not party to those conversations, he could not say what had happened, but he accepted that somehow it had affronted the ladies and asked that account be taken of the Respondents age and his illness.

The representative said that he would have been surprised that there were no written contracts-that the Respondent was a landlord over many years and he provided copies of tenancy agreements with non-nationals and appreciative correspondence from tenants.

The representative challenged the term ‘traditional’ used by the Complainant to describe a practice whereby tenants would seek their own replacement tenants. He said it was evident from the witness that this had only happened relatively recently as the Respondent had met her and others directly before taking them as tenants.

Regarding the complaint of discriminatory racist behaviour, he noted that nothing of a discriminatory nature had been said directly to the Complainant and that she had described what was said as an implication she took from what was said.

Regarding refusing people as tenants, a landlord could do this for any variety of reasons, on just meeting them, because they were young students, no references, any number of reasons, it is the landlord who has the final say as to who he takes as tenants. It worked both ways as the tenant can also decide not to take the accommodation. Asked what this statement meant in the context of the current case, the Respondent representative said that the property in question was in a highly desirable area and the Respondent kept in close contact with a neighbour who kept him informed of the conduct of tenants at the property. He did not elaborate further on the relevance of this point to the case brought by the Complainant.

Asked what the Respondent did with the property after the Complainant and (B) vacated the house in February 2019, the Respondent representative stated that the Respondent first spoke of selling the property and then handed it to the Council where it is now rented out for five years on a HSA scheme.

The Representative said he had no problem with the letter from the former tenant being handed into the adjudicator as evidence as he wanted to hand in letters from the RTB and a former tenant. The letter from the former tenant expressed gratitude to the Respondent for his assistance. The letters from the RTB showed registered tenancies in 2014 for people of apparently eastern European origin and in 2017 for four people who were neither European or white to judge by their names.

Asked his position on disclosure of the names of the parties in the Decision ,the representative said that he would comply with whatever decision was made, but that the one thing the Respondent had asked was that his name not be disclosed. His representative asked that the request for anonymity be respected on grounds of the ill health and age of the Respondent.

On a point of procedure, each of the parties submitted documents in support of their positions. One of these was the statement by a person on behalf of the Complainant who described her experience where he refers to the type of tenant the Respondent required as a tenant. The second was the documentation in relation to tenants at other properties presented on behalf of the Respondent to reject any allegation of the discriminatory practices or behaviour as contended by the Complainant being in any way the norm or reflecting the views or practices of Respondent. While these documents are interesting they are not evidence as such given that they could not be tested by the other party or the adjudicator.

In effect the hearing received no evidence on behalf of the Respondent regarding the facts of the matters at issue. His representative was not present for any of the discussions cited by the Complainant, the Respondent was not present to deny or challenge the facts as set out by the Complainant. His handwritten statement of events was contradicted by the Complainant and her presence together with being available to stand over her testimony carries far greater weight. There is a consistency between her account and the experience of her witness which challenges the written account given by the Respondent.

Regarding the evidence on behalf of the Complainant, there was a credibility about her presentation of her experiences with and because of the actions of the Respondent in January 2019. It was evident from her presentation of the complaint and her reasoning for doing so, that she felt an obligation to highlight what she viewed as discriminatory attitude towards certain types or classes of people. It was equally evident hat she felt in some way indirectly responsible for the manner in which the two other women were treated, in having to inform one of them she was not acceptable as a suitable tenant and then seeing the other tenant in the house evicted, as she sees it because she refused to accommodate the landlords preferences in the of tenant he considered suitable or more aptly, unsuitable, both of which stemmed as far as she is concerned from his discriminatory attitudes and behaviour which she felt extended to her by association as a foreign person.

The witness on behalf of the Complainant was also credible. While evidently friendly with the Complainant, she gave her account to the hearing very matter of factly and she also evidently bore no malice towards the Respondent with whom she had personally no difficulties, adding a description of his attitudes as being perhaps old fashioned.

The effect of the forgoing conclusions is to find that the Complainant has established a prima facie case that prohibited conduct occurred and has met the test of the burden of proof required by Section 38A of the Equal Status Act.

Notwithstanding the fact that in terms of evidence before the hearing, this was a very one-sided affair, the complaints fall to be considered and decided upon under the relevant provisions of the Act.

Findings is respect of each element of the complaint are set out below under the text of the related sections of the Act.

Complaint of Discrimination

To discriminate under the Equal Status Act means to discriminate within the meaning of Section 3(1) or 4(1) of the Act.

Section 3(1):

For the purposes of this Act discrimination shall be taken to occur-

(a)Where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection(2) or, if appropriate, subsection 3(B), (in this act referred to as the’ discriminatory grounds’) which-

(i)      Exists,

(ii)    Existed but no longer exists,

(iii)   May exist in the future, or

(iv)   Is imputed to the other person concerned,

(b) where a person who is associated with another person-

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a),constitute discrimination,

or

(c) where an apparently neutral provision [would put a person]referred to in any paragraph of section (3)(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Section (2) sets out the discriminatory grounds. For the purposes of this case, subsection (h) and falls to be considered:

‘that they are of a different race, colour, nationality or ethnic or national origins(the ground of race)

Section 4,related to grounds of disability, does not apply to this case.

Section 6 contains the provisions which apply to the disposal of premises and the provision of accommodation which fall to be considered in this case:

6-(1) A person shall not discriminate in-

(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 accommodation.

And Section 6(2)

Subsection (1)(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

And

Section 6(3) References in subsection (2) to the disposal of an estate or interest in premises or the provisions 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.

Accepting the bona fides of the Complainant in relation to the offence and distress caused to her by the behaviour and views expressed by the Respondent which were undoubtedly were racist, the Respondent did not address those comments towards the Respondent and according to her own evidence she asked were all of those who came to the country not the same, he said he did not think so. At no stage was the Complainant actually discriminated against. She was accepted as a tenant, she was not evicted, she suffered no detriment on grounds of race, colour, nationality or ethnic or national origins. Neither was the Complainant discriminated against in terms of the provision of accommodation.

The complaints under Sections 3 and 6 of the Equal Status Act are not well founded.

Complaint of Harassment

Section 11 of the Equal Status Act contains the definitions of harassment which fall to be considered in this case. For the avoidance of doubt there is no complaint or inference of sexual harassment in this case.

11(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5) another person (“the victim”) where the victim-

(a)    Avails or seeks to avail himself or herself of any service provided by the person or purchasesor seeks to purchase any goods being disposed of by the person,

(b)    Is the proposed or actual recipients from the person of any premises or of any accommodation or services or amenities related to the accommodation,

And

(5) (a) In this section-

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

…being conduct which in either case(including sexual harassment) has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

5(b) Without prejudice to the generality of paragraph (a),such unwanted conduct may consist of acts, requests, spoken words, gestures, or the production, display or circulation of written words , pictures or other materials.]

The conduct of the Respondent was unwanted conduct in expressing racist views, requiring the Complainant to act in a manner consistent with those views. The Respondent acted out his prejudices through the Complainant in declining to accommodate a tenant she sourced for his premises. His gesture of almost immediately evicting an existing tenant after she described the prospective new tenant whom the Respondent rejected as a tenant as being ‘the same’ as the other existing tenant was also unwanted conduct. The Complainant was humiliated into having to carry out his expressed wishes to inform the prospective tenant why she was not welcome as a tenant. The related impact on the Complainant of the eviction of the existing tenant should not be underestimated and is evident from her efforts to obtain assistance from other bodies to prevent the eviction before resorting to a complaint to the WRC. The environment created by the Respondent for the Complainant through his conversations with her on January 19th and 21st 2019 and his related actions represents harassment as defined, in creating an environment that was degrading, humiliating and offensive for the Complainant.

In determining appropriate redress, the seriousness of the offence, the evident repeated nature of the discriminatory conduct which underpins the finding of harassment and the impact on the Complainant are considerations, together with the requirement that the remedy is such that it will dissuade the Respondent from any future conduct of the kind found in this Decision, or any futher attempt to elicit others to act in the same manner.

The complaint under Section 5 of the Equal Status Act is well founded.

Complaint under Section 12(1)Prohibited Advertising

12-(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.

And

(3) In subsection (1) “advertisement” includes every form of advertisement, whether 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.

The complaint under this section of the Act raises a number of issues which are explored in these findings.

Firstly, is the question of whether there was an advertisement. In accepting the evidence of the Complainant that she was required by the Respondent to source a tenant which did not offend his definition of suitable tenants and which definition is found to be racist in nature, she did not comply with his wishes and by extension, no advertisement of a racist or discriminatory character occurred, as a matter of fact. This conclusion is such that it could be found to be the end of the matter. However, I have decided to address other issues raised by the complaint as these indicate clearly that even if it were accepted there was some form of advertisement, there other reasons why the complaint is not well founded.

The second aspect is the question of effect which would be necessary for a successful complaint under Section 12(1). In applying for a complaint to be considered well founded by the Workplace Relations Commission under Section 12(1) it would be necessary for a Complainant to demonstrate that the advertisement (prohibited conduct) ‘was directed against him or her’. It is clear from the facts of this case that any discriminatory advertising for a new tenant which the Complainant was asked to cooperate with, even if she had complied with that request was not ‘directed at her.’

The third and general aspect raised by this complaint is the question of who has locus standi to bring a complaint under Section 21(1) of the Act in respect of an advertisement. While Section 12(1) allows a person who claims that prohibited conduct has been directed against him, may seek redress by referring a case to the Director of the Workplace Relations, given that an advertisement by its very nature is something that is publicised to more than one person, it is difficult to imagine any circumstances where one complainant could claim that an advertisement could be ‘directed against him or her’ which terminology implies a level of exclusivity of intent in the prohibited conduct. It follows from this conclusion that while the Act of 2000, as amended, allows for complaints of prohibited conduct under section 12(1) to be made to the WRC, it is the provisions of Sections 23(1) which specifically provide for the making of complaints regarding advertising and as such, is to be interpreted as reserving the right to make complaints about advertising to the IHREC, except possibly in the most exceptional and restricted circumstances concerning an individual complainant which frankly, are hard to envisage when it subject matter is an advertisement.

Section 23(1):

Where it appears to the Authority that:

(a)    Prohibited conduct-……….

Or

(b)    A person has contravened or is contravening section 12(1) or 19 or regulations made under section 17 or 18,

The matter may be referred by the Authority to the [Director of the Workplace Relations Commission]

The right of the Authority to make such complaints was transferred to the IHREC under the Irish Human Rights and Equality Act 2014 and therefore the title of that body should be read as substituting for the Authority.

The Complainant in this case did not have locus standi t bring this complaint under the Equal Status Act 2000.

In summary, for each of the three reasons set out, the complaint under Section 12(1) of the Equal Status Act is not well founded.

Complaint under Section 3 and 6 of the Equal Status Act,2000-2018

The complaints of discriminatory treatment under Sections 3 and 6 of the Act are not well founded.

Complaint under Section 11 of the Equal Status Act,2000-2018

The complaint that the Complainant was the subject of harassment as defined under Section 11 of the Equal Status Act,2000-2015 is well founded. The Respondent is to pay the Complainant the sum of €10000 compensation.

Complaint under Section 12 of the Equal Status Act 2000-2018

The complaint that the Respondent displayed or caused to be displayed a discriminatory advertisement is not well founded.

Discrimination/Harassment/Advertisement on grounds of race and related grounds; accommodation