Complainant

Respondent

Parties

Maria Burns

David Mccarthy

Representatives

self 

Donal Gavin, W.B. Gavin & Company, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032938-001

12/12/2019

The Complainant commenced renting a property from the Respondent in October 2016.

Over the following two years, a number of issues arose in relation to the property, as a result of which, the relationship deteriorated between the Complainant and the Respondent. The Complainant submitted a complaint for adjudication to the Residential Tenancies Board in June 2019.

On 10 October 2019, the Complainant sent an ES1 Form to the Respondent, alleging discrimination under the Equal Status Acts. When this correspondence was returned, undelivered, to the Complainant, she gave the form to the Respondent, in person, on 5 November 2019. The Respondent replied to the Complainant, by way of an ES2 Form, dated 28 November 2019.

On 12 December 2019, the Workplace Relations Commission received a complaint from the Complainant, seeking redress under Section 21 of the Equal Status Act, 2000. This complaint alleged that the Complainant had been discriminated against by the Respondent, in the provision of goods/services, by reason of her gender, family status, age and the Housing Assistance payment.

That complaint, which has been duly delegated to me by the Director General of the WRC, is the basis of this investigation/adjudication.

In her complaint form to the WRC and in her subsequent oral evidence, the Complainant set out, in considerable detail, the history of her relationship with the Respondent from the commencement of the rental agreement on the property, in October 2016, up to the submission of her complaint in December 2019. According to the Complainant, the original rental agreement was conducted through the Respondent’s agent. She further stated that a Housing Assistance Payment (HAP) arrangement was accepted by and agreed with the agent.

According to the Complainant’s submission, while little maintenance/work was completed in the estate in the first two years of her tenancy, she did not raise any issues with the Respondent. However, the Complainant submitted that, in 2018, two events occurred which appeared to set her relationship with the Respondent on a downward trajectory. Firstly, the Complainant stated that the Respondent’s representative ceased working with him.

The second event related to the expiry of the Complainant’s HAP arrangement, after its initial two-year period. According to the Complainant’s evidence, on the expiry of the HAP, the Respondent sought increased rent, by way of cash top up, which she advised she was not in a position to pay.

The Complainant’s submission in relation to the period between June 2018 and December 2019 chronicles a serious of issues and incidents which lead to the serious deterioration in the relationship between the parties. The issues/incidents highlighted by the Complainant included the following:

·       No maintenance being done on the properties.

·       Failure to install Carbon Monoxide Detector.

·       Issuing an “Intention to Sell” letter to the Complainant, who was the only tenant to receive same.

·       Issuing a “Rent Increase Letter”.

·       Unannounced visit to the Complainant’s property, often after daylight hours.

·       Poor workmanship in the installation of a fire back and cowl.

·       Issues with the fire and the boiler, combined with the existence of strong fumes of oil in the house, were not appropriately addressed by the Respondent. According to the Complainant evidence, this led to her hospitalisation with symptoms of carbon monoxide exposure.

While the above list is not exhaustive, in terms of the issues/events raised by the Complainant, it provides a good insight into the issues that existed in the relationship between the Complainant, as tenant, and the Respondent is the landlord.

Against the background of the poor and rapidly deteriorating relationship between the parties, the Complainant submitted her complaint under the Equal Status Acts, in which she contends that the Respondent discriminated against her by reason of her gender, family status, age and the application of HAP.

According to her submission, the Complainant felt victimised and bullied by the Respondent based on her gender/family status, she being a single woman/parent. The Complainant stated in evidence that she does not believe that a male tenant would have suffered in the manner in which she did and would, most certainly, not have had the constant threats/letters/unannounced intrusion on the property, that she experienced. The Complainant further stated she endured constant pressure and bullying which she contends represents discrimination against her gender.

In further evidence, the Complainant stated that she was singled out by the Respondent because she was one of only two tenants, the other also being a single woman, who stood up to the Respondent and, as a result, was the recipient of victimisation and intimidation.

According to the Complainant, the persistent discrimination and victimisation which she experienced at the hands of the Respondent, over a three-year period, resulted in her requiring counselling and having to take time off work.

The Respondent set out his responses to the allegations, as originally set out by the Complainant in her ES.1 Form, in an ES.2 Form dated 28 November 2019.

According to the Respondent, many of the issues/incidents, which make up the complaint, were the subject matter of a complaint, filed by the Complainant to the Residential Tenancies Board (RTB). According to the Respondent, when the RTB met, in June 2019, to consider the Complainant’s complaints, she sought the Dispute Resolution Service and, as a result, entered into terms of settlement, at that hearing, which was duly ruled on by the RTB Adjudicator at that time.

According to the Respondent, the notice for termination to sell was validly put on the property as he was entitled to do so. In addition, the Respondent contends that the appropriate forum in which a complaint in respect of the sale of the property should be dealt with, is by way of adjudication and/or other hearings before the RTB.

The Respondent further stated that the serving the termination notice on the Complainant was triggered by pressure from creditors, as a result of which, it was necessary for him to sell some of the properties in the estate. Again, the Respondent reiterated that these matters are more appropriate for consideration by the RTB and not the Workplace Relations Commission.

According to the Respondent, the Complainant’s lodging of the complaint with the WRC was simply an attempt to try to extort money from him. The Respondent reiterated that the complaint wholly lies within the remit of the RTB, who are entitled to give compensation to the Complainant if they consider the termination notice to be invalid.

In is evidence at the second Oral Hearing, the Respondent stated that he did not have any issue with HAP payments.   He also stated that the Complainant had not had a rent review in four years and, as a result, he was in receipt of less rent for the property.

According to the Respondent, he found the Complainant difficult tenant, who, he contends, he was afraid of and, as a result, went out of his way to avoid her.

Witness Evidence:

The Hearing also heard evidence from the Respondent’s partner (Ms A), who looks after the administration of the property portfolio. Ms A presented detailed documentary evidence in relation to the breakdown of the properties under the Respondent’s management. This included details in relation to HAP payments and providing profiles of the tenants with regard to gender, family status and nationality.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at both Hearings. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below.

Preliminary Points:

At the commencement of the first Hearing, the legal representative for the Respondent raised three preliminary points, under the following headings:

1)      Time limits:

The Respondent contends that the ES.1 Form and the WRC complaint form were served on him simultaneously and that this is in contravention of the time limits set out in Section 21 of the Equal Status Act, 2000.

Section 21 (2) of the Act states as follows:

“ before seeking redress under this section the complainant –

(a)    Shall, within two months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within two months after the last such occurrence, notify the respondent in writing of –

(i)                  The nature of the allegation,

(ii)                The complainant’s intention, if not satisfied with the Respondent’s response to the allegation, to seek redress by referring the case to the Director,

and

(b)    may in that notification, with a view to assisting the complainant to deciding whether to refer the case to the Director, questioned the respondent in writing as to obtain material information and they responded may, if the respondent so wishes, reply to any such questions.

Having carefully reviewed the evidence adduced, I am satisfied that the Complainant originally submitted the ES.1 Form to the Respondent, via registered post on 10 October 2019. This correspondence was returned to the Complainant as “undelivered”. The evidence further shows that the Complainant personally served the ES.1 Form on the Respondent on 5 November 2019.

The Respondent replied to the ES.1 Form by way of an ES.2 Form, dated 28 November 2019. The records of the WRC show that the Complainant’s complaint against the Respondent was received on 12 December 2019.

Given that the issues, which the Complainant contends constituted the prohibited conduct, were ongoing at the time she submitted the ES.1 Form and that her submission of her complaint to the WRC took place after she had received, what she considered to be, an unsatisfactory response from the Respondent, I find that the Respondent’s preliminary objection of the basis of time limits is not well founded.

Consequently, I am satisfied that I have the jurisdiction to proceed to consider the substantive complaint made by the Complainant against the Respondent.

2)      Complainant’s witness:

At the commencement of the first Hearing, the Respondent’s legal representative objected to the attendance of the Complainant’s nominated witness/support person.

This objection was based on the fact that the said witness, Ms B, had previously lodged a complaint against the Respondent on similar grounds to those contained in the within complaint from the Complainant. It was also highlighted that the Complainant in the within case had acted as a witness for Ms B at her Hearing.

Consequently, it was submitted, on behalf of the Respondent, that there was a clear and distinct overlap between the actions in the WRC case being brought by the Complainant, in the within case, and those brought by Ms B. It was further contended that, given the overlap in evidence and the nature of the cases, Ms B’s attendance at the hearing of the Complainant’s complaint would be grossly prejudicial to the Respondent.

During exchanges on this preliminary point, at the Hearing, the Complainant raised an issue with regard to the attendance of the Respondent’s witness, Ms A, given that she is the Respondent’s partner.

Having considered all of the evidence presented on the day, I advised the parties that I was rejecting the Respondents preliminary objection in this regard and would proceed with the Hearing with both witnesses in attendance.

3)      Matters already before the Residential Tenancies Board:

The final preliminary objection, raised on behalf of the Respondent, related to the appropriateness of the WRC adjudication process for dealing with the Complainant’s complaint.

According to the Respondent’s submission, the matters being raised by the Complainant before the WRC, in the within case, had been dealt with by the Residential Tenancies Board (RTB).   It was submitted, on behalf of the Respondent, that the issues were adjudicated on by the RTB, initially, in June 2019 and subsequently by way of adjudication in July 2020.

The Respondent further submitted that he had lodged an appeal in respect of the adjudication of the RTB in July 2020 and, accordingly, the matters raised in relation to same were wholly before another state body to deal with and should not, therefore, be considered by the WRC.

Having reviewed all of the evidence adduced and having carefully considered the matter, it is clear that the Complainant’s complaints before the WRC relates to her contention that she has been discriminated against by the Respondent, in the provision of goods and services, on four of the grounds of discrimination, as set out in the Equal Status Act, 2000.

While I fully accept that the facts on which the Complainant is basing her complaint of discrimination overlap with or are similar to those which underpinned her complaint to the RTB, I am satisfied that the only statutory body with the remit to adjudicate on a complaint under the Equal Status Act is the Workplace Relations Commission.

Consequently, I am satisfied that I have the jurisdiction to proceed to investigate and adjudicate on the Complainant’s within complaint of discrimination.

Substantive Complaint of discrimination:

Section 38A of the Equal Status Acts (2000 – 2011) sets out, as follows, the burden of proof which applies in a claim of discrimination:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.”

This provision clearly puts an onus on a complainant to provide evidence from which it may be presumed that the prohibited conduct occurred. This concept is commonly referred to as establishing a prima facie case. It requires a complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in their particular situation. Should a complainant be successful in establishing a prima facie case of discrimination, the burden of proof then shifts to the Respondent to rebut the inference of discrimination raised by the complainant.

The requirements placed on a complainant in establishing a prima facie case of discrimination were set out by the Labour Court in the case of Mitchell v Southern Health Board [2001] ELR201, where the Court stated as follows:

“A claimant must prove, on the balance of probabilities, the primary facts on which they rely seeking to raise a presumption of unlawful discrimination. It is only if those 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 establishing a prima facie case of direct discrimination, the Complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the Respondent, which could reasonably give rise to the presumption that less favourable treatment of the Complainant had occurred.

With regard to the first point above, I am satisfied that the Complainant, in the within case, is covered by the relevant discriminatory grounds of gender, family status, age and housing assistance, as detailed in her complaint.

Discrimination under the protected grounds are provided for at Section 3 of the Act:

Section 3(1)(b) of the Acts provides, inter alia, that discrimination shall be taken to occur where:

“(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 (3B), in this Act referred to as the ‘discriminatory grounds’ … “

Section 3(2) of the Acts provides that:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(a)that one is male and the other is female (the “gender ground”),

(c)that one has family status and the other does not or that one has a different family status from the other (the “family status ground”)

(f)subject to subsection (3), that they are of different ages (the “age ground”)”.

The provisions in relation to housing assistance is set out in the Act as follows:

(3B) “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 ” )”

(a)    The Gender Ground:

In support of her claim that she was discriminated against by the Respondent on the general ground, the Complainant submitted that she was victimised and bullied by the Respondent based on her gender, she being a single woman. The Complainant further contended that she did not believe that a man, in the property, would have suffered and, most certainly, would not have had the constant threats and letters which she received and/or have the landlord arriving on the property unannounced, as often as she did.

Having carefully considered all of the evidence produced by the Complainant, I find none that would support the establishment of a prima facie case of discrimination on the gender ground.

Based on the evidence submitted and, more particularly, on the exchanges during the two oral Hearings, I am left in no doubt as to the extent of the Complainant’s dissatisfaction and upset with the manner in which she perceived she was treated by the Respondent. However, I find that dissatisfaction and upset, however deeply and passionately felt, is not sufficient grounds on which to establish a prima facie case of discrimination.

No credible evidence was adduced to suggest that a male, in similar circumstances, would have been treated differently. In fact, in the course of the Hearings, the Complainant provided evidence in relation to a male tenant in one of the Respondent’s properties, who, it is alleged, also experienced similar difficulties in his relationship with the Respondent.

The evidence provided in relation to the profile of tenants across the 78 properties owned/managed by the Respondent, clearly shows a mixture of males and females, both as single and couple tenants. I am of the view that such a mixture of genders, across the Respondent’s property portfolio, would not lend credence to the Complainant’s allegation of gender bias.

Consequently, taking all of the above into consideration, I find that the Complainant has failed to establish a prima facie case of discrimination on the gender ground.

(b)    The Family Status Ground:

While describing herself as a single parent, the Complainant’s evidence in support of her allegation of discrimination on the family status ground was very limited.  

In addition, I refer again to the evidence in relation to the tenant profile submitted on behalf of the Respondent. This identifies a mixture of tenants, comprising of single males, single females, single mothers and couples. Again, I find that this evidence clearly undermines any contention that the Respondent operated his tenancies on the basis of family starters bias.

Consequently, taking all of the above into consideration, I find that the Complainant has failed to establish a prima facie case of discrimination on the family status ground.

(c)     The Age Ground:

While the Complainant’s original complaint to the WRC alleged discrimination on the age ground, this was subsequently withdrawn. Consequently, the matter of age discrimination was not considered.

(d)    The Housing Assistance Ground:

The evidence introduced in relation to this aspect of the complaint, clearly shows that the Complainant’s HAP application was accepted at the commencement of the tenancy agreement with the Respondent.

The Complainant’s contention that the acceptance of her HAP might only have occurred because she was dealing with the Respondent’s representative, rather than with the Respondent himself, is irrelevant in a context where her application was accepted from the commencement of the tenancy agreement. Any contention that her HAP application may not have been accepted had she been dealing directly with the Respondent is purely speculative and, therefore, can carry no weight in any consideration of the complaint.

It is noted from the evidence adduced, that on expiry of the initial two-year period of the HAP arrangement, the Respondent sought additional rent, by way of cash top up. However, it was also noted that (a) the Complainant did not comply with this request and (b) to all intents and purposes, the HAP agreement remains in place.

Based on the evidence presented on behalf of the Respondent, it is noted that 35 of the Respondent’s 78 tenants are in receipt of HAPs. It is further noted, in this regard, that the Complainant is the only tenant in her estate on a HAP arrangement.

Consequently, taken all of the above into consideration, I can only conclude that the Complainant has failed to establish a prima facie case of discrimination on the housing assistance ground.

Conclusion:

It is abundantly clear from the evidence adduced in this case that the relationship between the Complainant, as tenant and the Respondent, as landlord, is extremely poor and, if the exchanges at the Hearings, were taken into consideration, it could easily be described as toxic, with both parties expressing extreme dissatisfaction with the other’s actions and behaviours.

Consequently, I am satisfied that, while the difficulties that arose and currently exist could more accurately categorised as personality differences between the parties, there is no evidence to support the allegation that the Respondent displayed conduct prohibited under the Equal Status Acts.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of gender, family status or housing assistance.

Consequently, I find that the Complainant’s complaint of discrimination in this regard is not well founded.

Equal Status Act

Gender

Family Status

Housing Assistance Payment (HAP)