ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033227
Parties:
| Complainant | Respondent |
Parties | Anthony Murphy | Kieran McComiskey Flynn And Associates |
Representatives |
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Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00043987-001 | 10/05/2021 |
Date of Adjudication Hearing: 19/08/2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, 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 was looking to rent a property for which the Respondent was an agent. The complaint relates to treating the Complainant unlawfully by discriminating against him in relation to housing assistance payment (HAP). It was confirmed with the Complainant at the outset of the hearing that this claim did not relate to a TUPE claim and therefore, was with drawn by him. The date of the alleged discrimination claimed was on 8 February 2021 The ES1 Form was dated 11 February 2021 with no ES2 Form sent in rely. The Complaint Form was submitted by the Complainant to the Workplace Relations Commission on 10 May 2021. The hearing was conducted remotely hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. The judgment of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 was explained in full to the parties. The parties agreed to proceed in the knowledge that decisions issuing from the WRC will disclose the parties’ identities. The Complainant and one witness from the Respondent swore an affirmation and gave evidence at the hearing. |
Summary of Complainant’s Case:
The Complainant expressed his interest in the property with the Respondent on 28 January 2021 and followed up with a phone call on 29 January 2021. He gave evidence that he was asked how much he earned per year, questions in relation to his partner and her work and in particular when she would be returning to work after her maternity leave as she was pregnant at the time. The Complainant outlined that his partner was on temporary layoff at the time due to the Covid19 Pandemic but hoped to return to work when the airline industry reopened. On 2 February 2021 there was an exchange of emails where the Respondent raised queries around the Complainant’s ability to pay the rent, current living situation and partner’s return to work date. The Complainant gave evidence that he spoke with the Respondent also on 2 February 2021 and felt his partner’s employment status was an issue as it had already been raised a few days earlier. It was the Complainant’s evidence that the Respondent stated the landlord wanted working professional as she was “screwed over before” and “two incomes were better than one”. On 8 February 2021 the Respondent wrote to the Complainant via email advising him that he was unsuccessful in his application for the house and he would keep him in mind for future properties. It was submitted on behalf of the Complainant that the HAP for a couple with a child in Dublin was €1250 and therefore, the rent on this property would be covered as it was on the market for €1,225. The consistent focus on the fact the Complainant’s partner was on the Pandemic Unemployment Payment (PUP) and their income was an indirect way of discriminating against them. It was accepted that there was no express conversation about HAP, but income and salary were the focus of the conversation. It was submitted that there was an implied fear that the Complainant would lose his job and he would have to rely on HAP to pay his rent. In response to the issue that “family status” was not ticked on the Complaint Form and the Complainant’s partner not being a party to the claim, it was submitted that there was a lot of focus on the Complainant’s partner’s pregnancy. The focus from the Respondent was on the mother and therefore a focus on the couple’s family status and emphasis on two incomes being better than one. It was submitted that s.3 (2)( c) , the definition of family status, was linked to S. 6 (6) (b) which provides: “(6) Nothing in subsection (1) shall be construed as prohibiting:- (a) a housing authority, pursuant to its functions under the Housing Acts, 1966 to 1998, or (b) a body approved under section 6 of the Housing (Miscellaneous Provisions) Act, 1992 from providing, in relation to housing accommodation, different treatment to persons based on family size, family status, marital status, disability, age or membership of the Traveller community.” The Respondent did not have any questions in cross examination for the Complainant.
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Summary of Respondent’s Case:
The Respondent gave evidence that the application process for this property came down to three perspective tenants which were furnished to the landlord to decide. It was submitted that the property was in a good area and under the market price therefore, there was high demand for the property. Email evidence was presented between the Respondent and the landlord detailing the consideration between the candidates. The landlord wrote on 3 February 2021; “we are being super cautious here as we have been stung before with renting and are stuck with the rent amount due to PRTB. While we would really like to help out Anthony and Nicole we are nervous about their financial stability.” Earlier that day the Respondent wrote in an email to the landlord that he considered both candidates to be “excellent” and stated that the Complainant’s salary “is sufficient to comfortably cover the rent” with reference to the Complainant’s partner returning to work in December. The Respondent adds that the Complainant has “family support available.” Further email correspondence was presented dated 4 February 2021 wherein the landlord asks if the Complainant and his partner are still interested in the property as the Complainant’s partner’s employer has been sold. The Respondent assures the landlord they are still interested as the Complainant followed up with a phone call earlier that day. In relation to the Pandemic Unemployment Payment, the Respondent stated this never came up conversation and the first time it was raised was in the Complainant’s email of 8 February 2021. Upon inquiry, the Respondent gave evidence that there were three applicants being considered of which there were no HAP applicants, two were families, the Complainant and the successful tenant. IT was further submitted that the successful tenant were a family where the mother was currently on maternity leave and she was due to return to work. |
Findings and Conclusions:
The first issue to decide upon is whether to allow the Complainant to submit a claim for discrimination on the grounds of family status when it was not ticked in the Complaint Form submitted on 10 May 2021. It does appear that the Complainant was in receipt of some specialist charitable advice at the time however, he did submit the form himself. Reading through the narrative of the complaint it is evident that his complaint does relate to family status and his pregnant partner. As the Workplace Relations Commission Complaint Form is not a statutory form I therefore, am allowing the addition of “family status” to this complaint. Section 3 (2) of the Equal Status Act 2000 provides: “(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: (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”),” Section 3(1) of the Equal Status Act, 2000 as amended provides: “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’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,” Section 3(3B) of the Act 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”).” Burden of Proof Section 38A of the 2000 Act, applies to all complaints of discrimination under the Equal Status Acts which places the burden of proof on the Complainant to establish, in the first instance, facts from which the discrimination 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 the inference of discrimination. Housing Assistance Payment The Complainant did not refer to an application for Housing Assistance Payment in his evidence or narrative on the Complainant Form. In fact, it was accepted by his representative that he was not in receipt or had applied for HAP at the time of engaging with the Respondent in respect of this property. The Complainant’s evidence was strongly in favour of his job and ability to comfortably cover the rent regardless of whether his partner was working or not. The argument that was submitted on the Complainant’s behalf that the question around his ability to pay implied that the landlord and/or Respondent was unwilling to accept him because he may at some stage in the future have to apply for HAP is not accepted. It is clear from the contemporaneous email correspondence between the Respondent and landlord that HAP was never a consideration nor did the Complainant raise it himself in his evidence or correspondence with the Respondent. As regards the argument that Section 6 (6 ) (b) applies to this case, this is rejected on the basis the Respondent and/or landlord do not fall with in the definition of a housing authority pursuant to the Housing Acts, 1966 to 1998 or a body approved under section 6 of the Housing (Miscellaneous Provisions) Act 1992. Therefore, I find the complaint not well founded. Family Status It is accepted that the Complainant can be considered as part of a family for the purposes of Section 3 (2 ) of the Act. However, in light of the Respondent’s evidence that the other applicants was (a) a family with (b) the mother at the time currently on maternity leave, that there is a direct comparator of equal family status who were the successful tenants of the property. Consequently, I find the complaint is not well founded.
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Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
In the circumstances where the comparator and successful tenant was also a family with the mother currently on maternity leave, I find this complainant not well founded. |
Dated: 19th October 2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
HAP- Family Status – Comparator- Not Well Founded |