ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040072
Parties:
| Complainant | Respondent |
Parties | Karen Duffy | 1st Class Letting & Property Management LTD. |
Representatives |
| Stephen McKinney - Director |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00051692-001 | 06/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00052291-001 | 17/08/2022 |
Date of Adjudication Hearing: 24/04/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of conducting an investigation into claims of discrimination and I have heard (where appropriate) the interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).
It is also noted that discrimination can occur where an apparently neutral provision would put such a person at a particular disadvantage compared with other persons unless the provision can be objectively justified by a legitimate aim. This is Indirect Discrimination and is covered in Section 3(1) (c).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration. Section 5 (1) prohibits discrimination in the following terms:-
“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”
In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.
Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill and train up staff. The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is in line with the maximum award available in District Court contract cases per Section 27(2)). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.
Discrimination is set out in Section 3 of the Act (as amended). Of significance in these proceedings is Section 3 (3B) which sets out that the providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments. The protection is intended to apply to existing tenants and to those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. The Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I asked for and was provided with supplemental documentary evidence in support of the Complainant’s case and this amounted to an email thread between the parties which was created in and around June 1st of 2022. The Evidence adduced by the complainant was challenged as appropriate by the Respondent witness. The Complainant alleges that she was discriminated against on the grounds that she was in receipt of rent supplement or housing assistance under the Social Welfare Acts. This ground is described in the Equal Status Act as the “housing assistance ground”. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent entity was represented by the Director/Owner of the company - a Mr. Stephen McKinney. Mr. McKinney had direct knowledge of the facts surrounding the Complainant’s complaint as was able to speak to these matters. The Respondent provided me with no submission in advance of the hearing but was able to give direct evidence. All evidence was heard following an Affirmation made by Mr. McKinnney. The Respondent’s assertions were challenged as appropriate by the Complainant. The Respondent rejects that there has been a Discrimination herein. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the parties in the course of this hearing. The Complainant had been renting a property in Balbriggan for a year. The Complainant was aware of the competition for accommodation and had been looking for something closer to Swords. The Complainant saw a studio property advertised through the Respondent letting agency. The Complainant was keen to have a look at it, as she wanted to move into the particular area wherein the property was situated. The Complainant secured a viewing on the 31st of May 2022, and the communication confirming this came from Mr. McK who was available to give evidence before me on behalf of the Respondent company. Within 20 or 30 minutes of viewing the property the Complainant confirmed her interest and sent her references to Mr. McK as the agent responsible for letting the property. On the morning of the 1st of June 2022, Mr.McK contacted the Complainant with the Bank details into which she was to pay a deposit. Mr. McK confirmed that she would probably be able to move into the property five days later on the 6th of June 2022. Mr. McK confirmed that he was holding the studio property for the Complainant. The Complainant was delighted that she had been selected and emailed Mr. McK expressing her thanks. The Complainant indicated that she was in receipt of a Housing Assistance payment but was confident that two months’ rent and a deposit would be payable on completion of the forms. The Complainant suggested that the process might take as little as ten days. Within ten minutes, Mr. McK emailed a reply to the Complainant stating that this would not be okay “…as the owner lives abroad, and he will not be in a position to sign forms or supply needed paperwork for HAP”. The Complainant replied stating that she had been assured by Threshold (the organisation tasked with advocating for the prevention of homelessness) that any documents to be filled out by the owner (as against the agent) could be filled out online and there should not be any delay. The Complainant did not personally get a reply to this email. For the avoidance of doubt, and given the email thread which was opened to me, I am satisfied that the Complainant has demonstrated a Prima Facie case of discrimination on the grounds of her being a recipient of housing assistance. There is an undeniable nexus between the revelation on the Complainant’s part that she receives the payment and the abrupt cessation of the agreement by the parties to proceed to a tenancy arrangement. Mr. McK stated that up to 20% of his tenancy and letting arrangements involve HAP recipients. He stated that for this particular property he had shown the property to almost 100 interested parties. Mr. McK conceded that the Complainant could have legitimately formed the impression that she had been selected to take possession of the stand-alone Studio apartment (per his email of the 1st of June). Mr. McK went on to say that in fact the final selection had not been made and he ultimately went with someone else. There was no evidence to suggest that this is an accurate statement, and the Respondent provided no email to suggest that any party, other than the Complainant, was offered the studio as of 9.50 on the morning of the 1st of June 2022. The suggestion made by the Respondent witness that he determined (after he had offered her the place) that the Complainant was not a good fit - simply makes no sense. Mr. McK put forward the surprising proposition that the Complainant was obliged, at the outset, to notify any potential landlord or letting agent of the fact that she was in receipt of a HAP payment. I cannot accept this proposition as it would fly in the face of the reasons for including this ground in the Equal Status Act. The “housing assistance ground” was included in response to a growing concern over the seemingly prejudicial effect that recipients of the assistance were experiencing. In particular, recipients of HAP were not being considered as desirable tenants. I therefore cannot accept that the Complainant was automatically under an obligation to disclose this fact from the outset. The Respondent witness agrees that he did not contact the Complainant after her final email of the 1st of June 2022. Mr. McK says he took a phone call from an unnamed individual in Threshold who he understood was acting for the Complainant though nothing came of that phone call one way or another. The Complainant says that she had no knowledge either way of what Threshold may or may not have done. The Complainant says that as far as she was concerned, she was lined up to take possession of a much-wanted property but as soon as she disclosed she was a HAP recipient, it was withdrawn. The Complainant made the point that she is in full time employment and works hard. She receives HAP only because she is not as well paid as others.
Whilst I recognise that the Respondent may have had negative experiences with one or two HAP tenants in the past, this was not his overwhelming experience. In any event, I imagine problems arise with all classes of tenancy arrangements which might possibly be one of the reasons why property owners engage letting agents such as the Respondent in the first place? On balance I find that the Respondent herein has been unable to discharge the clear inference that he has discriminated against the Complainant on the grounds of her being a recipient of HAP. When informed of this fact, he closed down any ongoing discussion between them. Mr. McK did not seek to suggest that he was acting on the instruction of the property owner. This was his decision. The discrimination occurred at that point in time. The situation was not ameliorated by any half-hearted suggestion that had the Complainant contacted him, he would have helped her find alternative accommodation. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00052291-001 – I find that the Respondent did engage in conduct prohibited under the Act and I accordingly do award the Complainant €1,800.00 compensation for the effects of the said conduct. Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00051692-001 – This complaint fails as it repetitive and has already been dealt within above.
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Dated: 13-06-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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