Complainant

Respondent

Parties

Daithi  O'Raithbheartaigh

Movehome Estate Agents

Representatives

  In person

 Respondent Principal

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040384-001

13/10/2020

This complaint was submitted to the Workplace Relations Commission (WRC) on 13th October 2020 and concerns an alleged act of discrimination against the complainant on the Housing Assistance Payment (HAP) ground when he contacted the respondent concerning the viewing of an apartment that he was interested in renting. The adjudication hearing took place on 15th March 2022 virtually on the Webex platform. The complainant availed of the opportunity to submit additional information after the adjudication hearing had concluded. The most recent date of receipt of additional information was 30th March 2022.

Substantive complaint

In respect of the advertised letting, the email interaction between the complainant and the respondent began on 30th June 2020 when the complainant sought to view an apartment that was available to rent.

On the 1st July 2020 at 13.19pm the letting agent confirms to the complainant that there is a viewing on Friday 3rd July 2020 and asks the complainant to confirm his attendance. At 13.30pm on 1st July 2020 the complainant confirms his attendance and asks what criteria is being sought in relation to the letting. The letting agent replies on Thursday 2nd July 2020 stating that:

 the landlord is looking for good tenant of course, in full time employment, who has references from previous landlords, proof of funds, someone who will look after the apartment. Let me know what your situation is when can you move in pls.

The complainant replies stating that it is his understanding based on the response that HAP is not accepted by the landlord in question. The complainant stated that he didn’t want to “waste any of our time if I am not what you are looking for in a tenant.”

The complainant did not receive any further response to his request and did not attend the viewing on Friday 3rd July 2020. The complainant submitted an ES1 form to the respondent on Friday 3rd July 2020 asking why he has been discriminated against on the HAP ground. It is the complainants view that he was discriminated against because of the landlords’ requirements on the basis that someone in receipt of HAP is less likely to be in full time employment and “in funds” as stated by the letting agent in her responses to the complainant.

Note: The letting agent who told the complainant what the landlord was looking for was not at the adjudication hearing. While the complainant wanted to cross examine this member of staff as to what she had said, this was not required as it was accepted by the respondent and was in writing as to what the complainant had been told and there was no dispute of fact in relation to this issue. In those circumstances, there was no need to adjourn the adjudication hearing and for the letting agent in question to attend on another day to be cross examined.

The complainant contends that he was discriminated against on the HAP ground in respect of renting an apartment. The complaint is based on the complainant being told that the landlord was looking for someone in full time employment, who was “in funds” and who had references from previous landlords. The complainant contends that initially the letting agent was very quick to respond to his inquiry but once he mentioned HAP, there was no further contact.

The complainant contends that someone not in full time employment is less likely to be in funds and is more likely to be in receipt of HAP. The complainant stated that when he asked what the criteria was in relation to renting the apartment that he was discriminated against by the letting agent in her response to him. The complainant submitted that the criteria outlined by the letting agent was discriminatory and not in compliance with the equal status legislation.

The complainant outlined that he reached out to the respondent on several occasions in an attempt to resolve the issue but the respondent failed to respond to him and did not engage with him in an attempt to reach an amicable solution.

The respondent refutes the complaint in its entirety. The respondent outlined that it launches propertys as a letting agent. In respect of the complainant the respondent contends that it answered the complainant’s queries in relation to the eligibility criteria for renting the apartment. It was accepted by the respondent principal that the complainant was informed by a relatively new member of staff what the landlord was looking for in a tenant but that this was not discriminatory towards the complainant. The respondent stated that having confirmed his attendance at the viewing, the complainant did not attend and presumed that he would not be accepted as a tenant. The respondent stated that approximately 20% of its clients are in receipt of HAP and that it does not discriminate in relation to the service it provides nor was it aware of the complainant’s personal circumstances at the time. The respondent outlined that the complainant had sought a settlement of €5,000 in relation to the complaint but that as the respondent felt it had always acted appropriately, it did not engage in settlement talks preferring instead for the matter to be heard and a formal decision issue on the complaint.

Discrimination

Discrimination is defined under Section 3 of the Equal Status Act, 2000 as follows:

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 (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,

(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 treated in a comparable situation, and

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

or

(c) where an apparently neutral provision would put a personreferred 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.

Burden of proof.

Section 38A of the Equal Status Act, 2000 sets out the burden of proof as follows:

38A (1) Where in any proceeding’s 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.

(2) 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.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

In the instant case the complainant contends to have been discriminated against on the HAP ground on the basis of being told of the landlord’s requirements when he made enquiries concerning the rental of an apartment.

Conclusions

Having outlined the timeline of the interactions between the complainant and the letting agent above and noting that at the material time the letting agent did not know whether the complainant was in receipt of HAP or whether he was in full time employment, whether he was “in funds” or in possession of references from previous landlords, I find that the complainant has not established less favourable treatment by the respondent.

The complainant never went beyond the initial contact emails with the letting agent and instead of attending the viewing as he had confirmed he would or making further contact to clarify if HAP was accepted, the complainant assumed that HAP was not accepted and submitted the ES1 form to the respondent asking why he had been discriminated against.

I note that the respondent did not reply to the ES1 form which would have been helpful and may well have resulted in the matter being resolved. This is something that I urge the respondent to rectify if a similar situation arises in future as an Adjudication Officer may draw inferences from the failure to reply to a complainant in relation to a perception that discrimination has occurred. However, I also note that the respondent confirmed approximately 20% of its clients are in receipt of HAP so it would not appear to me that the complainant would have been discriminated against had it been known that he was in receipt of HAP but as already stated the complainant’s personal circumstances were not known to the respondent at the material time.

Having considered the submissions of the parties and all of the additional information submitted in relation to the complaint, I find that the complaint fails as, in my view, the complainant was not discriminated against by the respondent as claimed.

Having considered the submissions of both parties to this complaint, I find that the complaint is not well founded.

Housing Assistance Payment, Discrimination