Complainant

Respondent

Parties

Megan  Kenna

Brendan O’Brien

Representatives

Michael Kinsley B.L. instructed by

Daly Kurshid Solicitors

 Arthur McLean 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-00052930-001

22/09/2022

This complaint relates to alleged discrimination on the grounds of gender and family status. The issue giving rise to the complaint relates to the complainant and her husband being tenants of the respondent and allegedly having their tenancy terminated when the complainant notified the respondent that she was pregnant in April 2022.

The complainant submitted an ES1 form to the respondent on 27th May 2022 alleging discrimination and harassment on the grounds of family status and race. There was no response from the respondent and the matter was referred to the Workplace Relations Commission (WRC) on 22nd September 2022.

The matter first came on for hearing on 30th May 2023. At that hearing, the respondent’s representative sought an adjournment as the respondent was unwell following surgery and was taking pain medication at the time. A brief adjournment was given, and the matter was subsequently rescheduled to take place on 4th July 2023.

At the reconvened hearing on 4th July 2023, the respondent renewed its application for the matter to be heard in private and the parties be anonymized in the adjudication decision. The basis for the application was that certain information relating to the respondent’s health post-surgery would be mentioned at the hearing. Having reviewed the relevant documentation, I decided that there were no valid reasons or special circumstances put forward for the matter to be heard in private. The hearing continued in public and both parties will be named in this decision.

Preliminary Matters

The respondent’s representative also raised a number of preliminary matters relating to the correct respondent and issues concerning jurisdiction vis a vis the complaint form as submitted. In respect of the correct respondent, two individuals were named as co-respondents and following clarification from the parties, the correct respondent was identified and is named in the title of this decision.

In respect of jurisdiction, the respondent’s solicitor stated that the complainant had incorrectly stated the provision of the Act that the respondent is alleged to have contravened. The respondent contends that in circumstances where the complainant “ticked the wrong box” she is not entitled to amend her case.

Counsel for the complainant stated that the provisions of Section 5 and Section 6 of the Equal Status Act, 2000 provide the complainant with the relevant protections in relation to the provision of services provided by the landlord and in relation to the tenancy agreement that was terminated for discriminatory reasons.

On this preliminary point, I note that the WRC complaint form is not a statutory complaint form, and it is clear from the complaint form what the issues are relating to the complaint as submitted and that all parties were on notice of same. Accordingly, I find that the complaint is properly before the adjudication services of the WRC.

The complainant contends that she has been discriminated against by the respondent by virtue of the communications she received in relation to her pregnancy and also when the tenancy agreement was terminated by the respondent. The basis of the complaint is that the complainant notified the respondent’s partner of her pregnancy in April 2022 and was subsequently told that she and her husband could not remain in their apartment as it was not suitable for a baby. The complainant stated that the email she received from the respondent on 21st April 2022 was a termination notice and she and her husband left the apartment on 23rd May 2022.

Evidence

The complainant gave evidence by affirmation at the adjudication hearing. The complainant stated that she had been living in Barcelona for three years and her husband found out in November 2021 that he had been successful in securing employment in Ireland. The complainant stated that her husband had viewed the apartment in question, had paid a deposit and agreed a 12-month lease. The rent was agreed at €1,650 per month.  The complainant stated that they moved into the apartment in January 2022 and until April 2022 there were no major issues except for a number of repairs that were to be carried out. The complainant stated that after she informed the respondent’s partner of her pregnancy, the respondent visited her during the heater repair process and conveyed his safety concerns relating to the suitability of the apartment for a baby. The complainant stated that she had her doubts in relation to the respondent’s bona fides and when he visited her, she decided to record the conversation. The complainant felt that the respondent was wrong in respect of his safety concerns regarding the external staircase. In relation to the other apartment that he had offered to her and her husband, the respondent was in the process of buying it but did not own it at that time, so the complainant’s view was that it was not a realistic option for her and her husband and in any event the apartment in question would only be offered on a monthly basis. The complainant stated that she was in the process of organising her Stamp 4, was in the early stages of pregnancy, had no G.P. had a number of hospital appointments and was unable to remove the impact of the stress that the situation was causing her.

Cross examination

It was put to the complainant in cross examination that the respondent had been “set up” in regard to the recording of their conversation during a visit to the complainant’s home on 9th April 2022 and that the complainant’s approach was aggressive towards the respondent. The complainant disagreed and described that she was not an equal participant in the conversation and that it was clear to her that the respondent was wrong in relation to the spiral staircase and was discriminating against her as a new immigrant who was pregnant. The respondent representative put it to the complainant that the respondent had legitimate safety concerns in relation to her and her family and was proceeding in good faith with that in mind. It was also put to the complainant that at no time had her tenancy agreement been terminated by the respondent.

Closing statement

In her closing statement, the complainant stated that at the material time she had just arrived in Ireland and was in a very vulnerable position and in the early stages of pregnancy. The complainant stated that she had concerns in relation to her pregnancy and that the issues she had experienced caused her significant stress. The complainant stated that she wished to be a voice for her own child and for other women so that this would not happen again. The complainant concluded by stating that her best interests were clearly not in the mind of the respondent and his actions towards her were discriminatory.

Redress

Given the egregious circumstances of this issue, counsel for the complainant sought that she be awarded the maximum compensation under the Act (€15,000) and that the respondent be directed to put a policy in place to ensure that no other person in the same situation is treated in such a way in future.

The respondent outlined its position by way of written submission and direct sworn evidence at the adjudication hearing. The respondent confirmed that the complainant became a tenant in a property of the respondent with effect from 23rd January 2022. The complainant notified the respondent’s partner that she was pregnant on or about 5th April 2022. The respondent raised concerns by email dated 21st April 2022 in relation to the unsuitability of the apartment for a baby. The respondent stated that the complainant considered the contents of the email to be a termination of her tenancy agreement and vacated the premises on 23rd May 2022.

Evidence

The respondent gave sworn evidence at the adjudication hearing. The respondent stated that he bought the property in 1994 and the apartment in question was a third-floor apartment with an external spiral staircase made of galvanised steel leading to the front door of the apartment. The respondent stated that in total there are 47 steps to reach the front door of the apartment including the spiral staircase. The respondent stated that when he became aware of the complainant’s pregnancy, he wanted to help her, and wanted to engage with her on possible alternative accommodation options that were available and suitable. The respondent stated that he did not want someone with a baby to live in that apartment as it was simply too dangerous and that he would not allow his own daughter to live there due to the danger associated with the external spiral staircase and the dangers that would exist in bad weather. The respondent stated that he repeatedly told the complainant that, as she was in the early stages of pregnancy, there was plenty of time to resolve any issues of concern and that he would do everything he could to find suitable alternative accommodation for her and her family. The respondent stated that there were some immediate options and that he had other properties that would also become available in the months that followed.

Cross examination

In cross examination, counsel for the complainant put it to the respondent that the complainant was subject to less favourable treatment due to her pregnancy when she was asked to move from the apartment she lived in. Counsel stated that it was no defence to say that the respondent had tried to accommodate the complainant in another apartment and that the efforts he made or promised to make were totally irrelevant.

The complainant asserts that she was discriminated on the grounds of gender and family status when the respondent told her and her husband that they would have to leave their apartment once he became aware of her pregnancy. The complainant stated that the respondent gave notice of termination of the tenancy by email dated 21st April 2022.

The Applicable Law

Discrimination

Section 3 of the Equal Status Act, 2000 at relevant parts states 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.

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

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

(b) not relevant

(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”),

Burden of Proof

Section 38A of the Equal Status Act, 2000 states as follows:

38A(1) 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.

(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.

Conclusions

I have given careful consideration to the submissions and evidence of both parties. There are many elements to the within complaint to be addressed. Firstly, the issue of the complainant notifying the respondent of her pregnancy. The respondent’s partner was informed of the pregnancy and relayed to the complainant that the respondent had some concerns as to the suitability of the apartment for a baby. The basis for the safety concerns being that there was a number of external steps up to the apartment (approximately 47) and the final number of steps were a spiral staircase made of galvanised steel. The respondent relayed these concerns to the complainant in a visit to the complainant’s home on 9th April 2022 and reiterated a number of times that, as it was very early in the complainant’s pregnancy, he would do whatever he could to help her and that there was no immediate urgency. It transpired that the complainant was recording the interaction without the respondent’s knowledge or permission and the respondent clarified at the adjudication hearing that he is obtaining separate legal advice on the issue and will be addressing that matter in a different forum.

In respect of the house visit on 9th April 2022 and the covert recording of the conversation from the adjudication perspective, the complainant stated that she thought it would be a positive visit and that she had invited the respondent to her home and that she thought they were going to have cake. I find this statement hard to believe given the complainant’s intention to record the meeting covertly. I also note that at the end of the audio recording which was played at the adjudication hearing in its entirety the complainant and her husband between them state; “I got it all” and “he’s declared war on us.” Given the circumstances surrounding the recording and the conversations that took place, I have disregarded everything that was said during that interaction between the parties.

In relation to the main issue of accommodation, the respondent offered the complainant and her husband a number of options such as another apartment that he was in the process of buying with an internal staircase that was slightly bigger and would be charged at the same rent per month. Another option was a two-bedroom apartment which would be slightly more expensive with rent of €2100 per month.

The respondent reiterated a number of times to the complainant that he was not evicting her and her husband and wanted to help them and that he would do his best to accommodate her and for her not to worry about anything as there was plenty of time to sort things out.

On this issue, I find the respondent’s evidence to be honest and sincere and in line with the sentiments that were conveyed to the complainant in the email thread beginning on 21st April 2022. In that email, the respondent outlines his intentions to help the complainant “in any way possible” to find suitable accommodation and also assures the complainant that if she decides to leave the apartment outside the terms of the tenancy agreement, there will be no financial penalty imposed. The email also reiterates the health and safety concerns relating to the 3rd floor apartment with the external staircase as outlined earlier.

The complainant took the email of 21st April 2022 as a notice of termination and informed the respondent that she and her husband would leave the apartment on 23rd May 2022. The complainant sought a return of the security deposit of €1650 plus a further sum of €500 to cover expenses with regard to leaving the property. By email dated 9th May 2022, the respondent again clarifies that there was no notice of termination and once again reiterates his support and the offer of help to the complainant and her husband in finding suitable alternative accommodation.

Having considered the issue, I find that the complainant and her husband were not issued with a notice of termination. I note the respondent’s repeated assurances to the complainant that he was not issuing her with a termination notice and would do everything he could for her. The complainant considered herself to have been given notice of termination and acted on that belief in leaving the apartment on 23rd May 2022.

On the issue of discrimination, I find that the complainant has not discharged the burden of proof that she bears in respect of her complaint. I find that the situation arose out of genuine health and safety concerns with regard to the external spiral staircase and the respondent’s genuine personal concern in relation to the safety of a baby in those circumstances. I do not find that the mere suggestion of changing apartments was discriminatory as suggested by the complainant’s representative nor do I find that the complainant was treated less favourably by the respondent on the basis of her gender and family status when the alternative options were being explored and offered to her while she was in the early stages of her pregnancy.

For all of the above reasons, I find that the complaint was not discriminated against and the complaint fails.

Having considered the written and verbal submissions of the parties and the evidence provided at the adjudication hearing, I find that the complaint is not well founded.

Discrimination, gender, family status, burden of proof