Complainant

Respondent

Parties

Chloe  Hickey

Carlow Property Management CPM Lettings & Sales Ltd.

Representatives

 Mr. V Clarke, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039719-001

10/09/2020

The respondent is a Real Estate Agent & Property Management Company.

The Complainant was a person in receipt of HAPP and a single parent who was seeking to rent accommodation. The complainant claimed that the respondent’s actions and the information provided by an employee of the Respondent indicating that she was required to submit a current employment reference having been put on notice that she was a single parent, unemployed and in receipt of HAP, amounted to discrimination against her on the prohibited grounds of gender, family status and Housing Assistance, contrary to the Equal Status Acts.  In her complainant form the complainant confirmed that the first date of discrimination was 22nd April 2020 and that she notified the Respondent of her concerns through the submission of an ES1 Form on the same date.  She contended that as the Respondent advised that they would not take her Landlord’s reference into account, as they required her current employment reference instead and as the company advised that it was their policy to only let to people who had an employment reference their actions on that day amounted to discrimination.

The respondent disputed the claim of discrimination, advised that there had been a miscommunication which had been cleared up by the Respondent and that they let property to large numbers of tenants in receipt of HAP.  The Respondent stated that while there had been initial misunderstanding on behalf of a junior member of staff this did not constitute discrimination under the act.

In her complaint form, the Complainant stated that on 20th April 2020 she received a response to an on line form she had completed in relation to a property for rent.  She stated that the email advised that an employment reference was on an “if applicable” basis, and so she was not initially concerned.  She stated that she emailed the respondent on the same day to enquire if she could still contact the office about the property, in the context of the Covid pandemic and that she received a prompt phone response from a staff member hereinafter referred to as “S”.

The Complainant stated that she was having difficulty with a landlord reference due to the pandemic and the age of her current landlord and that she queried this with the Respondent. She stated that she enquired if a reference could be taken by phone and she stated that “S” responded that her history as a tenant was not really relevant.

In her complainant form the complainant stated that “S” asked if she had any job references and if she was currently employed, to which she responded that she was not currently employed but that she had her most recent job references. She stated that “S” then advised her that it was office policy to only let to people with employment reference, that this was at the request of landlords.  She further stated that she advised “S” that she was sitting her final exams in May, that he responded by asking if she would have a job then, to which she replied that she hoped so.  She stated that he advised her that he could not offer her a viewing as she was unemployed and did not have a current employment reference.

The Complainant stated that she told “S” that this behaviour amounted to discrimination and that this was initially met with silence from the Respondent.  She stated that after a pause he then reiterated that it was office policy because landlords prefer people who are employed. The Complainant stated that she again advised “S” that she was in her final year of a law degree and that she was clear that this policy was discriminatory and should be brought to the attention of senior management.  She stated that there was another long silence and that as she was getting nowhere she just brought the conversation to a conclusion.

The Complainant stated that the conversation lasted in excess of 3 minutes but that subsequently “S” attempted to act as though the conversation had not happened, that her concerns were merely a misinterpretation of a previous email, which she stated it was not.  She stated that “S” made statements that were “clear, concise and unequivocal.”  She stated that “S” did not provide any justification for the stated policy nor did he indicate that she had misinterpreted what he had said but rather her concerns were met with silence.

The Complainant stated that in the final email she received from “S” he admitted that he had made the statement.  She stated that she was told the property was already in process and so she still did not get the option of viewing the property.   In his later correspondence “S” advised the Complainant that her references were required in writing, although this had not been said in the earlier phone call.  She stated that she believed this to be a “less than adequate justification for a non-offer of a viewing”.  The Complainant stated that she had emailed the Respondent at 3.42 pm, soon after the phone call, that she did not receive a response nor was she offered a viewing, yet in the time from the initial phone call (3.02 pm) to the final email response at 4.33 pm the Respondent was indicating that the property was already in process.  The Complainant stated that she had advised “S” on the call that she was seeking the property for herself and her daughter and that it was clear to her that “S” had no interest in her tenant references nor her past employment references but only a current employment reference.  She stated that she found his comment that the company only deal with “high standard persons for their clients” particularly upsetting.  She stated that “S” was very annoyed with her and clearly didn’t want to deal with her from the moment he heard of her employment status. 

The Complainant also provided a written submission and within that submission she confirmed again the content of the phone conversation as outlined above.  In addition, she stated that “S” had said to her that the Respondent “owed it to landlords to let to people of a certain standard.”  She submitted that in an attempt to end the call “S” had said thank you, thank you and that she had responded by telling him that she was a final year law student and that their current policy was discriminatory as she was in receipt of HAP.  She submitted that she advised him to bring the matter to the attention of senior management as it was a serious issue.  The Complainant submitted that after she had stated her status as a HAP recipient and after he had said about maintaining a standard for landlords, “S” advised her that the Respondent does “let to HAP, just not this standard of property.”

The Complainant provided copies of email correspondence between her and the Respondent in relation to the matter. 

In conclusion, the Complainant submitted that she believed she was discriminated against and treated less favourably that other applicants as follows:

·        She believed that “S” was trained to disregard and exclude people in receipt of social support as an office policy but that it hadn’t been made clear to him that he should not advise potential tenants of the policy.

·        His final email referring to his statement as a misinterpretation was “a very transparent attempt to circumvent his over disclosure of the discriminating practice after some contemplation

·        If this had been a simple misunderstanding it would have been resolved quickly and easily on the call, which it was not.  No apology or rebuttal was offered despite there being ample time to respond and despite being advised of the law.

·        The initial and subsequent emails are an acknowledgement of the call having taken place

·        Despite being on notice of the Complainants letting situation with a child and HAP during the calls and in subsequent emails he continued to discriminate and further exclude her from the viewing and the property

·        She questioned the validity of the statement that the property was already in the letting process with the landlord and another candidate

·        The final email from the Respondent accepts that the statement was made and the Complainant disputes that it was a misinterpretation.

The Complainant submitted that she was discriminated on the grounds that she was in receipt of social support, the Respondent policy to require an current employment reference was clearly stated to her on the phone.  She submitted that before the final email the Respondent was on notice of her status as a single mother as she had advised that she was looking for a property to rent for her and her daughter both by email and on the phone call.  The Complainant highlighted that she was not given a viewing after references were received.  She submitted that the additional response requiring the references to be written, in the context of the pandemic were not reasonable or proportionate.

Complainant evidence at hearing:

At hearing the Complainant stated that she had sent in an application for a property advertised for rent and that she had received an automated response.  She stated that she sent a subsequent email with a query regarding the landlord reference and that she received a phone call back from “S”.  she advised that her previous landlord was elderly, was not accustomed to using technology, was cocooning due to Covid 19 and therefore not in a position to submit a written reference.  She stated that “S” advised her that the landlord reference was irrelevant and that it was the employment reference that was necessary.  She advised that he told her that the Respondent “owed a duty to landlords to get someone in employment”, that this was what landlords wanted.

The Complainant stated that she advised “S” that such a practice would constitute discrimination, she stated that she advised him of the legal situation and asked him to escalate the matter to senior management.  She stated that she had advised him that she was unemployed at that time and that she was seeking a property for herself and her daughter.  She stated that he was on notice of her HAP and family status.  She stated that the Respondents actions placed her in a very bad position, that she needed to find a home for her and her daughter and that the only option ultimately given to her was to put an 80-year old man at risk.  She stated that she could not understand why the requirement changed from being a landlord reference to a written landlord reference and why the matter was not escalated to senior management.

Cross examination of the Complainant:

The Respondent representative asked the Complainant if it was correct that she had applied through a property website and received an automated reply.  The Complainant confirmed that this was correct.

The Respondent representative asked if she accepted that the initial response stated that the applicant was required to submit “either a landlord of employment reference” and she confirmed that it did.  He put it to the Complainant that she could, perhaps have asked the landlord to leave the written reference in the garden for her to collect, to which she responded that this would have required her to travel outside of the 5K limit. The Respondent representative posed the question was housing not an exception?

The Respondent representative asked the Complainant if she had received a clear letter stating the requirements, why then did she make phone contact?  The Complainant responded that she wished to check, in the context of Covid restrictions if the Respondent would make an exception and accept a verbal reference.  The Respondent representative asked if she had ever contacted the landlord and the Complainant said that she had.

The Respondent representative asked the Complainant if “S” had advised her that she could use an employment reference and she confirmed that he had.  He asked her to confirm that she was not in employment and the time and she did so.  He then put it to her that she did not meet the criteria and she confirmed that yes, but that it was very specific criteria.  The respondent representative asked the Complainant if she would accept that the circumstances at the time were not normal and the Respondent had an obligation to staff not to have “open house” showings and the Complainant agreed that this was the case.

The Respondent representative noted that in the context of Covid restrictions there were reduced numbers seeing property and asked the Complainant if, in these circumstances it was reasonable that the Respondent carry out checks for their protection by filtering people by the industry standard.  The Complainant accepted that it was reasonable.

The Respondent representative put it to the Complainant the all applicants received the automated reply so therefore she was not treated less favourably.  The Complainant responded that she had no issue with the initial email but with the comments made by “S” when he said that it was office policy to only let to people in current employment and when he asked her when she would be getting employment, she stated that this was where the discrimination occurred.

A discussion then took place in relation to information sought by the Complainant in relation to the numbers of HAP applicants and their success rates.  The Respondent put it to the Complainant that she had been issued with a confidentiality document in good time which she had failed to sign and return and that in those circumstances she had not been furnished with the data requested.  The Complainant accepted that she had only read the document the previous day.

The Respondent representative put it to the Complainant that she was not an average “lay litigant” and the Complainant confirmed that she had completed her law degree.  The Respondent representative advised that the Respondent received a high level of HAP applicants and that 75% of lettings are to HAP applicants.

In conclusion the Respondent representative reminded the Complainant that she had stated that she was not debating the first email, however he put it to her that she was seeking an exception, that she wanted discretion.

The Respondent did not provide a submission in advance of the hearing.  However, the Respondent did provide a copy of the ES2 Form and a comprehensive statement from the employee SO’N who was involved in the matter.

ES2 Form

The Respondent indicate that initial contact from the Complainant was 22nd April 2020, where she encountered “S” operating alone in the office, due to Covid-19 restrictions. He was only two months into his employment. The Respondent stated that after investigation it became apparent that the recollection of the verbal exchanges differed between the complainant’s version and those of “S”. The respondent stated that he would not have said that landlords will only let to employed persons, that he had insufficient experience at the time to make such a statement and that he assuredly did not preclude the Complainant from viewing the property.

The respondent stated that the Complainant submitted a former employer’s reference, but this was received after the property had already been let to a new tenant.  The respondent outlined that the demand for rental property is such that once a letting is advertised, there is a very short time before a new lease is agreed.

The Respondent denied discrimination with regard to the Complainant’s gender, her civil status or her family status and stated that the Company is fully aware of the requirement not to discriminate on any grounds. The Respondent further stated that when landlords say they prefer employed tenants, the Respondent will always advise them that this is discriminatory and therefore unacceptable.

The Respondent advised that their normal practice is, per industry standards, to seek two references for prospective tenants and that these would generally be from the previous landlord and an employer. The respondent acknowledged that patently, this could not always be the case, given individuals may not have previously rented and may be currently unemployed. In these circumstances the Respondent stated that they have to garner assurances from alternative

sources.

The Respondent stated that it was unfortunate that the Complainant did not seek to escalate her purported problem to senior management, where any misconceptions could have been resolved swiftly.

Statement of “S”

The Respondent submitted a statement entitled “Statement from SO’N”.  The statement was not signed or dated.

In that statement “S” stated that the property that the dispute related to was first advertised on the morning of Thursday the 16th of April 2020 and that as per the usual course of business, enquiries soon started to flood into the info mailbox from applicants who were requesting a viewing. He stated that one of his colleagues in the office started to respond to each enquiry received that very same morning. He stated that it is always in the Respondents’ best interest and the interest of

the landlord to respond as quickly as possible to expedite the letting process as efficiently and

effectively as possible and that this is particularly the case whereby the landlord has a mortgage repayment, as any downtime in the rental of the property can cause issues.  He stated that his colleague sent the general “lettings response” email to each applicant who had sent an enquiry and that this standard email contained a message thanking the applicant for their enquiry, requesting

that written landlord or employment references (if applicable) are sent across at the earliest

convenience and that an agent will be back to them in relation to a viewing.

“S” stated that once the email responses were sent, applicants quickly started to reply with their written references. He stated that his colleague started to review these and emailed back each applicant to start to arrange viewings and that viewings were scheduled to be conducted that afternoon. He stated that his colleague attended these viewings on Thursday afternoon with multiple applicants and that for any of the applicants who liked the property (after viewing in

person) they were passed across to the landlord that evening for consideration.

“S” sated that on Friday the 17th of April 2020 either himself or his colleague contacted the landlord regarding the applicants who had been passed across the evening before. The landlord confirmed that she had not yet assessed the applicants, that she would look over each one at the weekend and in the meantime, the Respondent was to continue advertising and showing the property. The Respondent decided to leave the property advertised over the course of the weekend so that further applicants could apply.

He further stated that on Monday the 20th of April 2020, upon coming into the office, he started his typical routine of checking whether any urgent emails had been received into the info mailbox over the weekend and he noted that there were numerous additional enquiries received for the property. He stated that one of these enquiries was received from the Complainant, that she had made an enquiry through the advertisers on Saturday the 18th of April 2020 at 5.06am. He stated that as with all the additional enquiries received over the course of that weekend he responded with the general “lettings response” email at 9.27am. He clarified that this email is standard operating policy and is used to communicate the conditions upon which the respondent will consider applicants. It sets forth the requirement for written references (Landlord or employment) to be emailed to the Respondent before property viewings can be arranged.

He stated that the Respondent required no further information from the applicant other than the stated reference(s). The additional applicants received on the same morning responded with their written references and, as a result, further viewings were then

scheduled to take place on the afternoon of Wednesday the 22nd of April 2020. These viewings were scheduled to be conducted by his colleague. No further correspondence had been received from the Complainant at that point.

On Tuesday the 21st of April 2020 a further conversation took place with the landlord who stated she had reviewed the applicants sent across thus far, however, she had not made a final decision and enquired as to whether any further interest had been received. He stated that his colleague explained that a further three viewings had been scheduled for the following afternoon and that if these applicants were interested, they would also be passed across for consideration.  He further stated that on Wednesday the 22nd of April 2020 his colleague attended the three viewings at the property, that the first viewing took place at 2pm, second viewing at 2.15pm and a third viewing at 3.10pm.

“S” stated that at 3.01pm an email was sent to him from the Complainant and that this was the first correspondence received back from her since he had responded to her initial enquiry. He stated that the Complainant enquired whether it would be possible to ring the office as she thought that the office may have been closed (due to COVID). After reading the email, he stated that he rang the Complainant as a matter of courtesy.  He introduced himself and confirmed that he was ringing in relation to her expressed interest in the property advertised.  He stated that the Complainant confirmed that she was very interested in viewing the property, however, she had a concern regarding obtaining a written reference from her current landlord as he was elderly, was not familiar with modern technology and was cocooning due to COVID.  He stated that she asked

whether it might be possible to send the landlord details across via email where he could then be

called to verify her tenancy history. At this point, I took the opportunity to state that there had been

a lot of interest received on the property already, and, that multiple viewings had already taken place. He stated that he did this to manage expectations, as it would not be fair to put someone forward for a property where they potentially might get their hopes up unnecessarily as there is a long line of people ahead of them in the selection process. He stated that he confirmed that for an application to progress to view any property, written references must be received. As the Complainant had already stated that she was finding it difficult to obtain a written landlord reference, I advised that there was no need to worry about the landlord reference as other references could always be given as outlined in the original email sent to her. He stated that he then proceeded to ask whether she was currently employed as an employment reference was also acceptable and that the Complainant confirmed that she was not currently employed,

however, she also confirmed that she would be able to provide her most recent job reference from a previous employment.

“S” stated that the Complainant also confirmed that due to not being employed she was in receipt of HAP.  He stated that he asked the Complainant whether this previous employment reference would be a written form of reference and she stated that she had a text message which she had received from the manager in her previous employment confirming the period that she worked there. She advised that this could be sent across. I reiterated that to proceed with an application the office had a policy that only written references were accepted. These were typically a letter format and have signature applied. He stated that in the case that no signature is applied, the Respondent performs a call back procedure to verify the authenticity of the reference. I mentioned that this was the procedure that we had in place for all our landlords and that it was common practice across the industry. He stated that he also asked the Complainant whether she would be able to send across a copy of her HAP approval letter or HAP entitlement letter as this would confirm that she was in receipt of HAP and would also confirm her payment capacity. He outlined that it can often be

the case that a tenant may be in receipt of HAP, however, the amount they are entitled to may not

be enough to cover the rent. He stated that the Respondent always advises HAP tenants to contact their HAP office to seek to avail of more support, to help them throughout their tenancy and take the pressure off.

“S” stated that the Complainant responded “Ok” regarding the HAP letters and then proceeded to confirm, again, that she was not currently employed due to finishing her third year in college, where she was studying law, and that she had her final exams coming up. Therefore, she was not able to provide a current employment reference. He stated that he confirmed to the Complainant again that it was office policy that only written forms of reference could be accepted and that this was indicated as a firm starting point to all applicants as it was to the Complainant.   He stated that his request was met with a period of silence where he proceeded to ask the Complainant to send across whatever written documents she had, and that the Respondent would review and get back to her.  He stated that he felt that the phone call was merely going around in circles as he

kept stating that written references were required (he stated that he took the call as a courtesy to the Complainant, that he had been clear in the first email about the policy, and that he began to feel that the Complainant was simply trying to circumvent the requirements. He stated that he also felt that she was trying to intimidate him by telling him that she was a Law student), and he stated that she kept stating that she wasn’t employed and was struggling to obtain her landlord reference.  “S” stated that his last comment was met with another period of silence, where the Complainant  then said “ok, thank you” to which he replied with “thank you, thank you” and the phone

conversation then ended.

Shortly after the phone conversation, at 3.43pm “S” stated that he received an email from the Complainant where she confirmed that she was in receipt of HAP of €680 per month. She also listed her previous landlord contacts – the property they owned, their names and phone numbers. She also attached a copy of a text message from her previous employer – (all of which he stated, were clearly not what the Respondent required and what had been conveyed to her in his initial email).

“S” stated that she confirmed that her current rent was €800 and that she had been paying this up to date, her email also asked for confirmation of whether the Respondent office held a ‘current

employment reference policy’ which stated that the Respondent did not offer viewings or lettings to a person if they could not provide a current employment reference. He stated that upon reviewing the email, he firstly noted that she had not provided the written references requested nor

had she provided the HAP approval or HAP entitlement letter. Secondly, he stated that he was quite confused and taken aback by her comment regarding the Respondent not offering viewings to

unemployed persons. He advised that his initial thoughts were that she had misinterpreted what he had said when stating that the Respondent only progresses applicants who provide written forms of reference. He further advised that at 3.47pm he replied to the Complainant to apologise for any misinterpretation and informed her again that the Respondent does ask all applicants to send either written landlord or employment references, where these are applicable. He stated that he genuinely thought “there must have been crossed wires and she had mistaken what I had said.” 

He stated that the Complainant replied to his email at 3.59pm to confirm that she could arrange written references and that there had not been a misinterpretation. He advised that in that email she also stated that he had directly confirmed on the phone that landlords specifically request employment references and as an office policy the Respondent does not offer viewings without one. He also advised that she asked for confirmation that he rebut his statement and requested that he work to his best efforts to treat her equally, regardless of her employment status. “S” stated that he replied to the Complainant at 4.34pm to state that he did rebut his statement and that in so doing he was referring to rebutting the statement he made regarding misinterpretation, as he believed that he had been clear and concise in what he had requested. He stated that what he meant on the phone was that the Respondent does not accept any applicants without written references, whether these are landlord or employment – the emphasis being on written. He stated that he felt as

though he had to reiterate the point. He advised that he also confirmed to the Complainant that he understood she was not currently in employment and requested her to send across her written landlord reference as she had stated in her earlier email that she was now able to provide written references and so he assumed that providing the landlord reference was no longer such a big problem.  He stated that he decided at this point, to reiterate that the property had already been shown and that applicants were currently sitting with the landlord for consideration as he wanted to make it clear that if these applicants were not successful then the Respondent would be in touch regarding her application. He stated that this was in an effort to manage expectations. He stated that he knew there was a strong possibility that the property would end up “let agreed” from the viewings which had already taken place. He stated that this turned out to be the case one

of the applicants who had viewed the property on the afternoon of the 22nd of April 2020 was successful in renting the property.

“S” stated that after this email exchange he heard nothing further from the Complainant regarding her written landlord reference or her HAP approval letter. The next communication from the Complainant was an email regarding a complaint form, where she asked him to fill out the form and provide details regarding how many HAP tenants the office managed, whether the Respondent had refused any HAP tenants previously etc. he stated that he was shocked by this email and alerted it to his colleague straight away, this was then escalated to the Director of the Respondent who advised that he and his colleague were not to complete the form and were not to communicate with the Complainant regarding the form or her complaint.

In conclusion, “S” stated that he was very sorry if the Complainant misinterpreted what they discussed. He stated that the Respondent policy is clearly set out in the initial requirements email and that he had no doubt that if Miss Hickey could have complied with the requirements, then she would have received consideration. He stated that he felt that her subsequent call to his office was an attempt to circumvent the stated requirements and as far as he was concerned the Complainant was informed by the initial email of what the policy was. He stated that he didn’t know she was unemployed when he sent this email, nor did he know her family status or employment status or indeed anything else about her.

Respondent Representative Position at hearing:

The Respondent Representative pointed out that this period of time had been particularly difficult for businesses, that the instant matter took place during the first lockdown arising from Covid 19.  He stated that the industry standard in terms of carrying out due diligence was to seek a written landlord reference or a written employment reference.  He stated that all applicants for a property received an automated email response that clearly set this out.  He also pointed out that arising from government restrictions during Covid open house viewing was not permitted and that in those circumstances the Respondent was required to filter people based on the criteria set down and to do their utmost to accommodate everyone to view the property.

The Respondent representative stated that the Complainant had, like all other applicants, received the automated email containing the details of what was required.  He stated that this had been explored with her on the phone call on 22nd April , but that at the end of the day the Complainant was unable to comply with the requirements.  He stated that it would have been possible to have addressed the matter of the elderly landlord but that no relevant documentation materialised within the required timeline.  He stated that in order to sustain a case under the Equal Status Act the Complainant was required to establish a prima facie case, and that in circumstances where the requirements for all applicants was outlined in the email issued automatically to all applicants there could not be a prima facie case.

Witness evidence given by “S”

“S” confirmed that he was working as an Estate Agent with the Respondent and that he was the employee who had dealt with the Complainant in April 2020.  He confirmed that he had seen the Complainant’s enquiry in relation to the property advertised, that she had received the automated email and that all other applicants had received the same email.  He further confirmed that the respondent was contractually obliged to get a written reference and he confirmed that everyone who supplied such a reference was given the opportunity to view the property.  He advised that the Complainant did not supply the required reference and that this led to phone call which was the subject of the instant matter.

He stated that the Complainant left a message outlining concern about the landlord written reference and that he had advised her that the property had been advertised for a while and that there were multiple applicants.  He further stated that he reminded her of the requirement for a written reference and advised her that she could instead send the recent employer reference.  He stated that the Complainant advised him that this also was not possible as that reference was in text form, rather than written.  “S” confirmed, in response to a question from the Respondent Representative that he did not have scope to make an exception.

The respondent Representative asked “S” about his response to the email of 22nd Aoril from the Complainant (At 3.58) where she stated that she could arrange for a written reference.  “S” stated that this was only partially true, that the Complainant had a text reference.  He stated that he “didn’t mean to confuse” but that only a written reference was acceptable and he apologised for not stating clearly that a written reference was required.

The Respondent Representative asked if the Complainant was treated differently and “S” stated that she was not.  He stated that this all occurred in the early stages of the Covid pandemic restrictions and that staff were attending the office on a rotation basis including senior staff.  He confirmed that this was his first job, that he had worked on his own a few times, that he had received in house training and that he would refer any questions he could not answer to a more senior colleague. 

Cross examination of “S”

In response to questions from the Complainant “S” confirmed that he did not refer the issue of discrimination raised by the Complainant to senior management as he felt the criteria for making application was clear from the original email.  The Complainant then put it to him if this was the case even after she had asked him to do so, to which he responded that when “a member of the general public says discrimination it does not mean it is necessary to escalate the issue.”  The Complainant again asked “S” if he considered it necessary to raise the matter at senior level after a member of the public had raised such a concern and he responded “no”.

The Complainant asked “S” if he had received her statement before he completed his account and he confirmed that he did.  She put it to him that in that context his account of events was written more than a year and a half after the phone conversation had taken place and he confirmed that was the case.  The Complainant referred to “S”’s statement that he “felt the call was going in circles” and drew attention to his statement that he “may not have said written reference”. “S” responded that he may sometimes have given the advice with or without being specific about the requirement for a “written” statement.  The Complainant drew attention to the change in testimony.

The Complainant asked “S” if he was sure he could remember the conversation and he confirmed that he was sure.  She asked if there was a normal flow to the conversation and he responded that he did feel he had to keep repeating to her about reference.  She asked if at any point the conversation was stopped and he stated that yes when he asked for the HAP form.

She asked “S” if he recalled asking her when would she get employment and he stated that he did not recall asking that question.  The Complainant put it to him that he seemed to be indicating that only one question was being repeated and answered and “S” responded that the conversation was going in circles, that he was constantly repeating advice and providing options.  The Complainant further put it to “S” that he could not be specific about what was said given the passage of time before he wrote up his statement and he acknowledged that he may have omitted something.

The Complainant referred “S” to his email where he stated “I meant to say” and asked if this meant he didn’t say it and he responded that it indicated he might possibly have said it but that what he meant was…  The Complainant referred him to their discussion about the standard of tenancy and stated that he had a duty to recall the discussion, to which he responded that he did not remember.

The Complainant asked “S” when he did not receive the HAP form why he did not request it and he responded that it had been covered in the formal email, that the first “port of call” was the email and that he had requested the HAP form quite a few times during their phone conversation.  The Complainant put it to him that in his statement he only documented that he asked once about the HAP form.  “S” responded that he asked twice and that it was referenced in the first email.

The Complainant advised that she had submitted an employer reference and he responded that it did not meet the criteria.  She asked why then did she receive an email saying “thank you for your application”.  “S” responded that he did so out of “pure habit”, that he sent such emails on a daily basis.  The Complainant asked him why he did not get back to her to advised that it did not meet the criteria to which “S” responded that people were already selected for the viewing, that the reference needed to be on headed paper and signed and that the Respondent had a duty of care to the landlord and not to members of the public.

The Respondent Representative intervened stating that the Complainant had sought to be treated differently, that this was akin to a “blind request”.  The Adjudication Officer advised the representative that he should not intervene in a witness testimony.

“S” stated that the Complainant’s application did not meet the requirement in relation to HAP and he stated that he could only apologise for any miscommunication.  The Complainant asked why he had not escalated the matter when she made mention of discrimination to which he responded that he did not bring it back as he felt he had been clear from the outset.  The Complainant asked him if he had escalated the matter when he got the complainant form, that she had received an email stating “we will be in touch”.   He stated that he had mentioned to her that the house was “in process” and when the owner had come back the property was let quickly.  He stated that he had felt a “bit intimidated”.  She asked when he had received her complaint “why not sort it then?”, to which he replied that he felt “intimidated by the information.”

The Complainant asked “S” how familiar he was with HAP and he confirmed that he had little involvement, that he had a brief knowledge only.  She asked if he was familiar with HAP payments and he acknowledged that he was, that HAP were the “most preferential tenants” as they were less likely to default and he acknowledged that he was aware that each such tenant might have different entitlements.  The Complainant confirmed she had concluded her cross examination.

The Complainant concluded by stating that the witness was clearly stating that he required a current employment reference, that he had given conflicting evidence in relation to whether or not he was clear that such reference needed to be written, that he was relying on the content of the first email to prove that no discrimination occurred but that from her perspective she was clear and unambiguous that the discrimination arose after that email was received by her.

Witness evidence given by Ms. CT, Commercial Director

Ms. T confirmed that she was the Commercial Director of the Respondent company.  She confirmed that she had received a request for commercial data.  She advised that she believed that the data would demonstrate that the Respondent does not discriminate against Hap recipients.  She advised that it had been a long a tedious process extracting the data and had taken considerable time.

Ms. T further confirmed that the Complainant did not avail of the opportunity to review the data.

Cross examination of Ms. T.

The Complainant put it to Ms. T that she was not present on the phone call, to which Ms. T replied that she was referring to the data and what it showed and that the Complainant did not fill out the required form to have the data provided.

General:

This is a complaint of discrimination pursuant to the Equal Status Act.  It is on the grounds of gender, family status and HAP.  It relates to a claim that the respondent’s alleged actions in advising the Complainant that it required a “current employment reference” and only present landlords with prospective tenants who are in employment amounts to discrimination on the grounds of gender, family status and HAP. 

I note that Section 5. -(1) of the act states that “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.”

I note that Section 2 defines a service as follows:

“service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a)   Access to and the use of any place,

It is clear that the respondent is a provider of service to landlords seeking to rent their vacant properties but also to prospective tenants seeking to rent properties.  I am satisfied that the interactions between the Complainant and “S” as an agent of the Respondent fall within the meaning of a service as defined in the Act. I also find that the complainant was seeking such a service from the Respondent and that her complaint of discriminatory treatment comes within the scope of the Act.

The complainant in this case alleged that she was discriminated against and treated less favourably on the grounds of gender, on the grounds of family status and on the grounds of HAP. 

Gender Discrimination

I must now consider whether the complainant has established discriminatory treatment on the gender ground.  In considering this matter, I paid close attention to the complainant’s written complaint form, her written statement and to the evidence given by her at hearing.

Section 85A (1) of the act provides: that “(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In any case involving an allegation of discrimination an Adjudication Officer must first consider the allocation of the burden of proof as between the complainant and the respondent. 

Section 85A provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if an Adjudication Officer considers them to be sufficiently significant to raise an inference of discrimination, then the onus of proving the contrary shifts to the respondent.  If a complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination the claim cannot succeed.

It is for the complainant in the first instance to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the respondent.

In Melbury Developments Ltd. V Valpeters [2010] ELR 64, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The established test for ascertaining if the burden of proof shifts to the respondent was set out by the Labour Court in its determination in Mitchell v Southern health Board [2001] ELR 201.  That test provides:

1)     It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the complainant fails to do so, he or she cannot succeed.

2)     If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination

3)     If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent.

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.

In the instant case the Complainant did not point to any male comparator in either her complaint form or her statement whom she alleged was treated differently by the Respondent.  Throughout the hearing she did not refer to this matter.

In the absence of a comparator and in the absence of any primary facts relating to less favourable treatment of the Complainant to any male service user I must conclude that the Complainant has not succeeded in establishing a prima facie case of gender discrimination.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground.

Family Status Ground

I must also consider whether the complainant has established discriminatory treatment on the family status ground.  In considering this matter, I paid close attention to the complainant’s written complaint form, her written statement and to the evidence given by her at hearing.

In relation to the complaint that the Complainant was discriminated against by the Respondent on the prohibited ground of family status I note that in establishing a prima facie case of direct discrimination, the Complainant must 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 a single parent and that the Respondent was on notice of her status in this regard.  However, the Complainant did not submit details of any comparator whom she believed was treated in a more favourable manner.  There was no comparator outlined in her complaint form nor in her written statement; nor was any evidence presented at hearing.  While the Complainant made mention of her single parent status, she made no link between that status any actions or behaviours on the part of the Respondent.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.

HAP Ground

The remaining element of the complaint relates to the claim that the Respondent treated the complainant less favourably on the HAP ground in relation to comments made by an employee of the Respondent in a phone conversation on 20th April 2020 where it is alleged that he:

·       asked if she was currently in employment

·       advised her that her history as a tenant was not relevant

·       advised her that there was an office policy of only letting to people with employment references

·       asked when she would be in employment

·       advised that he could not offer her a viewing as she was unemployed

In relation to the complaint that the Complainant was discriminated against by the Respondent on the ground of HAP I note that in establishing a prima facie case of direct discrimination, the Complainant must establish (a) that they are covered by the relevant 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 was a recipient of HAP and that the Respondent was put on notice of this during the aforementioned phone conversation.

In relation to the second point above, I note that Section 3 of the Equal Status Act prohibits discriminatory conduct on ten grounds in the provision of services or the disposal of goods and that included amongst the grounds is the grounds of HAP.

I note also that there was a dispute between the two parties in relation to what was said by the estate agent “S” to the Complainant during their phone conversation and I note that there were no witnesses to that conversation.  In those circumstances I must consider the statements submitted by the parties, and in this regard I note that the Complainant detailed her concerns in writing on the day of the phone call and completed her ES1 form within days.  I note that in her evidence she was consistent and clear in providing details of what was said during the call.

I note that “S” did not write up his statement at or close to the time of the phone discussion, but acknowledged at hearing that it was written circa a year and a half after the event and was written after seeing the Complainant’s statement.  I note that during the hearing he apologised for miscommunication on more than one occasion and indicated that he could not recall saying certain things while engaged in the phone conversation with the Complainant.  I also noted that the email correspondence between the parties which were provided by the Complainant would support the Complainant’s account of the discussion.

In these circumstances I find the evidence given by the Complainant to be credible and I have lent a certain weight to it in my consideration of this matter.  Accordingly, I find that the Complainant has succeeded in establishing a prima facie case of discrimination on the ground of HAP.

The Substantive Case of Discrimination on the Ground of HAP

I note the details of the Complainants case as set out in her complaint form and her statement.  I understand her complaint to be that she was discriminated against on the ground of HAP by the Respondent and that this first occurred on 22nd  April 2020 during a phone call with an employee of the Respondent where she was first asked for job references and if she was employed and where she was advised that the office had a policy of only letting to people with employment references.  I note that she alleged that she was advised that this was at the request of landlords and that she was advised that she could not be offered a viewing because she was unemployed and did not have a current employment reference.  I note also her allegation that the employee advised her that the Respondent owed it to landlords to “let to people of a certain standard.”

I further note that the Complainant submitted that she advised the employee that such a policy would constitute discrimination, that she was in receipt of HAP. And that he should bring this matter to the attention of senior management.  I note that the Complainant also submitted that the Respondent employee stated that “we do let to HAP, just not this standard of property.”  I further not the Complainant’s position that despite her raising her concern directly with the employee, at no time during the phone conversation, did he indicate that she had misunderstood him.

I note that the Complainant’s evidence at hearing, and under cross examination was consistent with statements made in her complaint form, in her ES1 Form and in the written statement provided and I note that her account of events was written within days of the phone call. 

In relation to the Respondent position, I note the content of the written witness statement from S O’N and submitted by the Respondent and I note that it was not signed nor dated. I note the witness statement that the property in question was advertised on 16th of April, that there were a large number of applicants and that all applicants received  the general “lettings response” email and that this standard email contained a message thanking the applicant for their enquiry, requesting that written landlord or employment references (if applicable) be sent across at the earliest convenience and that an agent would be back to them in relation to a viewing.

I note the witness statement that once the email responses were sent, applicants quickly started to reply with their written references and that his colleague commenced arranging viewings.  He stated that his colleague attended these viewings on Thursday afternoon with multiple applicants and that for any of the applicants who liked the property (after viewing in person) they were passed across to the landlord that evening for consideration. I note his statement that the property continued to be advertised over that weekend and that numerous additional enquiries were received by Monday 20th April. I note further that he stated that all the additional enquiries, including one from the Complainant, received the general “lettings response” email at 9.27am. I note his statement that the

Respondent required no further information from the applicant other than the stated reference(s) outlined in that email. I note that he stated that the additional applicants received on the same morning responded with their written references and, as a result, further viewings were then scheduled to take place on the afternoon of Wednesday the 22nd of April 2020 and that no further correspondence had been received from the Complainant at that point.  I note that 3 further viewings were scheduled to take place on 22nd April at 2 pm, 2.15 pm and 3.10 pm.

I noted the witness statement that he rang the Complainant on 22nd April upon receipt of her email and that she outlined her concern regarding obtaining a written reference from her current landlord as he was elderly, was not familiar with modern technology and was cocooning due to COVID.  I note that he stated that he advised her that there had been a lot of interest received on the property already, and, that multiple viewings had already taken place and that he confirmed that for an application to progress to view any property, written references must be received.  I further note that he stated that as she was finding it difficult to obtain a written landlord reference, he advised that there was no need to worry about the landlord reference as other references could always be given as outlined in the original email sent to her. I note that he stated that he then asked whether she was currently employed as an employment reference was also acceptable and that the Complainant confirmed that she was not currently employed but that she would be able to provide her most recent job reference from a previous employment. I note that in his statement he confirmed that the Complainant did confirm that due to not being employed she was in receipt of HAP. 

I note his statement that he asked the Complainant whether this previous employment reference would be a written form of reference and she stated that she had a text message which she had received from the manager in her previous employment confirming the period that she worked there. She advised that this could be sent across. I note his statement that he reiterated that to proceed with an application the office had a policy that only written references were accepted.

Finally, I noted that the witness stated that the property was already let by the time of receipt of the Complainant’s documentation.

I note the evidence given by that witness I note the evidence given by the witness “S” at hearing and in particular I note that he confirmed that he wrote that statement after seeing the Complainant’s statement and approximately a year and a half after the phone call.  I note that witness gave evidence that the respondent was contractually obliged to get a written reference and that everyone who supplied such a reference was given the opportunity to view the property.  I note that he advised that the Complainant did not supply the required reference and that this led to phone call which was the subject of the instant matter.

I note that he described that during the phone call he had advised the Complainant that the property had been advertised for a while and that there were multiple applicants.  He submitted that he reminded her of the requirement for a written reference and advised her that she could instead send the recent employer reference.  I note that he stated that the Complainant advised him that this also was not possible as that reference was in text form, rather than written and I note that he confirmed that he did not have scope to make an exception.  I note that the witness confirmed that he had apologised in the email of 22nd April for not stating clearly that a written reference was required and that the Complainant was not able to provide this as her former employer reference was by text.

There are some aspects of this case that are not in dispute between the parties and I note them as follows:

·        That the complainant made an application to view a specific property in April 2020

·        That further to that phone call she received a call from “S” on behalf of the respondent on 22nd April 2020

·        That she had a concern about the necessity for a written landlord reference in the context of her landlord’s necessity to cocoon during Covid

·        That a discussion took place between them as to how she could satisfy the requirements set out in the email of 20th April in order to obtain a viewing

·        That a number of emails were exchanged between the Complainant and “S” on 22nd April arising from the discussion

·        That the Complainant documented her concerns in the ES1 Form on 22nd April

·        That “S” wrote his statement after seeing the Complainant’s statement and approximately a year and a half after the phone call had taken place.

It is also evident that the dispute, between the parties, centres on what was said during the phone conversation, statements which the Complainant believes go to the heart of her allegation of discrimination on the grounds of HAP.  In this regard I am swayed by the fact that the Complainant account of events is, to all intents and purposes, a contemporaneous account, whereas the witness statement, on which the Respondent relies was written a year and a half after the event.   It is also evident that the Complainant’s testimony at hearing was consistent with her written account of events, whereas the key witness “S” varied in his recollection, and in some instances could not recall at all.

In an effort to ascertain if there was other independent means of verifying the content of the discussion I turned to the emails exchanged to establish what light thes might shine on that discussion and I note the following:

Email of 20th April at 9.27 am – from SO’N to the Complainant seeking written landlord and employment (if applicable) references and confirming that references were required prior to arranging a viewing.  In bold italic print it also advised that “with the current situation all viewings have been put on hold but we are still collecting references so when we are given the go ahead we will be in contact to arrange viewings.”

Email of 22nd April at 3.01 pm – from the Complainant asking if she could phone or if the office was closed due to Covid.  It is clear that the witness “S” phone the Complainant upon receipt of this email.

Email of 22nd April at 3.42 pm – from the Complainant providing details of HAP payments and current rent, together with contact details for her previous landlords.  She also attached an email reference from her previous employer.  In that email she referred to the phone conversation and advised that “I would like confirmation that you do or do not hold a policy initially stated as your “current employment reference policy”, which you stated the office will not offer viewings or lettings to a person if they cannot provide a current employment reference i.e. an unemployed person of a person in receipt of social welfare”

Email of 22nd April at 3.47 pm – from SO’N where he stated “I do apologise for the misinterpretation.  As mentioned in the mail I initially sent to you from your enquiry we do ask applicants to send a written landlord and employment (if applicable) reference.”

Email of 22nd April at 3.58 pm – from the Complainant stating “As per the employment sorry no misinterpretation. Directly stated by you during our phone call.  Your landlords specifically request employment references and as an office policy you do not offer viewings without one.  I would just like a confirmation that you do indeed rebut this statement and you will work to your best efforts to treat me equally. With or without employment.”

Email of 22nd April at 4.33 pm – from SO’N stating “I do rebut my statement, what I meant to say was that we don’t accept applicants without written reference, be it landlord or employer or both.  I understand you are not currently working so if you can send me your written landlord reference.  We will then be in touch if it is available.  This house has already been shown and is now currently with the landlord.  If it is not rented out we will be in touch.”

Having considered these emails, the various submissions and the evidence given by the parties at hearing I am persuaded that the account of events described by the Complainant are broadly accurate and I have formed the view that “S” did advise the Complainant that the Respondent required a current employment reference and did further advise her that it was office policy to not offer viewings without such a reference.  I am also concerned that at the time of initial contact between the Complainant and the Respondent there was no indication that the property would become unavailable for viewing so quickly and, in fact, the standard general email issued by the Respondent indicated that “with the current situation all viewings have been put on hold”.  This email was issued on 20th April, yet by the afternoon of 22nd April the Respondent would suggest that all viewings were completed and a closed list of potential candidates given to the landlord. I do not find this proposition credible.

Based on the foregoing and in the context that the Complainant had put the Respondent on notice that she was in receipt of HAP I find that the Respondent’s conduct in this regard did constitute discrimination on the prohibited ground of HAP.

I found that the complainant had not established a prima facie case of discriminatory treatment on the gender or family status grounds, contrary to the Equal Status Acts.

However, I also found that the Complainant had established a prima facie case of discrimination on the ground of HAP and that the Respondent conduct did constitute discrimination on the prohibited ground of HAP, contrary to the Equal Status Acts.

In these circumstances it is my decision that this complaint is well founded. Having regard to the obvious impact of these actions on the Complainants’ opportunity to secure a property and to the factors outlined above under findings, I order the Respondent to pay the Complainant €7000 in compensation for the effects of the prohibited conduct.

Gender discrimination, family status discrimination, HAP discrimination

Complainant

Respondent

Parties

Chloe  Hickey

Carlow Property Management Cmp Lettings & Sales Ltd.

Representatives

 Mr. V Clarke, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039719-001

10/09/2020

The respondent is a Real Estate Agent & Property Management Company.

The Complainant was a person in receipt of HAPP and a single parent who was seeking to rent accommodation. The complainant claimed that the respondent’s actions and the information provided by an employee of the Respondent indicating that she was required to submit a current employment reference having been put on notice that she was a single parent, unemployed and in receipt of HAP, amounted to discrimination against her on the prohibited grounds of gender, family status and Housing Assistance, contrary to the Equal Status Acts.  In her complainant form the complainant confirmed that the first date of discrimination was 22nd April 2020 and that she notified the Respondent of her concerns through the submission of an ES1 Form on the same date.  She contended that as the Respondent advised that they would not take her Landlord’s reference into account, as they required her current employment reference instead and as the company advised that it was their policy to only let to people who had an employment reference their actions on that day amounted to discrimination.

The respondent disputed the claim of discrimination, advised that there had been a miscommunication which had been cleared up by the Respondent and that they let property to large numbers of tenants in receipt of HAP.  The Respondent stated that while there had been initial misunderstanding on behalf of a junior member of staff this did not constitute discrimination under the act.

In her complaint form, the Complainant stated that on 20th April 2020 she received a response to an on line form she had completed in relation to a property for rent.  She stated that the email advised that an employment reference was on an “if applicable” basis, and so she was not initially concerned.  She stated that she emailed the respondent on the same day to enquire if she could still contact the office about the property, in the context of the Covid pandemic and that she received a prompt phone response from a staff member hereinafter referred to as “S”.

The Complainant stated that she was having difficulty with a landlord reference due to the pandemic and the age of her current landlord and that she queried this with the Respondent. She stated that she enquired if a reference could be taken by phone and she stated that “S” responded that her history as a tenant was not really relevant.

In her complainant form the complainant stated that “S” asked if she had any job references and if she was currently employed, to which she responded that she was not currently employed but that she had her most recent job references. She stated that “S” then advised her that it was office policy to only let to people with employment reference, that this was at the request of landlords.  She further stated that she advised “S” that she was sitting her final exams in May, that he responded by asking if she would have a job then, to which she replied that she hoped so.  She stated that he advised her that he could not offer her a viewing as she was unemployed and did not have a current employment reference.

The Complainant stated that she told “S” that this behaviour amounted to discrimination and that this was initially met with silence from the Respondent.  She stated that after a pause he then reiterated that it was office policy because landlords prefer people who are employed. The Complainant stated that she again advised “S” that she was in her final year of a law degree and that she was clear that this policy was discriminatory and should be brought to the attention of senior management.  She stated that there was another long silence and that as she was getting nowhere she just brought the conversation to a conclusion.

The Complainant stated that the conversation lasted in excess of 3 minutes but that subsequently “S” attempted to act as though the conversation had not happened, that her concerns were merely a misinterpretation of a previous email, which she stated it was not.  She stated that “S” made statements that were “clear, concise and unequivocal.”  She stated that “S” did not provide any justification for the stated policy nor did he indicate that she had misinterpreted what he had said but rather her concerns were met with silence.

The Complainant stated that in the final email she received from “S” he admitted that he had made the statement.  She stated that she was told the property was already in process and so she still did not get the option of viewing the property.   In his later correspondence “S” advised the Complainant that her references were required in writing, although this had not been said in the earlier phone call.  She stated that she believed this to be a “less than adequate justification for a non-offer of a viewing”.  The Complainant stated that she had emailed the Respondent at 3.42 pm, soon after the phone call, that she did not receive a response nor was she offered a viewing, yet in the time from the initial phone call (3.02 pm) to the final email response at 4.33 pm the Respondent was indicating that the property was already in process.  The Complainant stated that she had advised “S” on the call that she was seeking the property for herself and her daughter and that it was clear to her that “S” had no interest in her tenant references nor her past employment references but only a current employment reference.  She stated that she found his comment that the company only deal with “high standard persons for their clients” particularly upsetting.  She stated that “S” was very annoyed with her and clearly didn’t want to deal with her from the moment he heard of her employment status. 

The Complainant also provided a written submission and within that submission she confirmed again the content of the phone conversation as outlined above.  In addition, she stated that “S” had said to her that the Respondent “owed it to landlords to let to people of a certain standard.”  She submitted that in an attempt to end the call “S” had said thank you, thank you and that she had responded by telling him that she was a final year law student and that their current policy was discriminatory as she was in receipt of HAP.  She submitted that she advised him to bring the matter to the attention of senior management as it was a serious issue.  The Complainant submitted that after she had stated her status as a HAP recipient and after he had said about maintaining a standard for landlords, “S” advised her that the Respondent does “let to HAP, just not this standard of property.”

The Complainant provided copies of email correspondence between her and the Respondent in relation to the matter. 

In conclusion, the Complainant submitted that she believed she was discriminated against and treated less favourably that other applicants as follows:

·        She believed that “S” was trained to disregard and exclude people in receipt of social support as an office policy but that it hadn’t been made clear to him that he should not advise potential tenants of the policy.

·        His final email referring to his statement as a misinterpretation was “a very transparent attempt to circumvent his over disclosure of the discriminating practice after some contemplation

·        If this had been a simple misunderstanding it would have been resolved quickly and easily on the call, which it was not.  No apology or rebuttal was offered despite there being ample time to respond and despite being advised of the law.

·        The initial and subsequent emails are an acknowledgement of the call having taken place

·        Despite being on notice of the Complainants letting situation with a child and HAP during the calls and in subsequent emails he continued to discriminate and further exclude her from the viewing and the property

·        She questioned the validity of the statement that the property was already in the letting process with the landlord and another candidate

·        The final email from the Respondent accepts that the statement was made and the Complainant disputes that it was a misinterpretation.

The Complainant submitted that she was discriminated on the grounds that she was in receipt of social support, the Respondent policy to require an current employment reference was clearly stated to her on the phone.  She submitted that before the final email the Respondent was on notice of her status as a single mother as she had advised that she was looking for a property to rent for her and her daughter both by email and on the phone call.  The Complainant highlighted that she was not given a viewing after references were received.  She submitted that the additional response requiring the references to be written, in the context of the pandemic were not reasonable or proportionate.

Complainant evidence at hearing:

At hearing the Complainant stated that she had sent in an application for a property advertised for rent and that she had received an automated response.  She stated that she sent a subsequent email with a query regarding the landlord reference and that she received a phone call back from “S”.  she advised that her previous landlord was elderly, was not accustomed to using technology, was cocooning due to Covid 19 and therefore not in a position to submit a written reference.  She stated that “S” advised her that the landlord reference was irrelevant and that it was the employment reference that was necessary.  She advised that he told her that the Respondent “owed a duty to landlords to get someone in employment”, that this was what landlords wanted.

The Complainant stated that she advised “S” that such a practice would constitute discrimination, she stated that she advised him of the legal situation and asked him to escalate the matter to senior management.  She stated that she had advised him that she was unemployed at that time and that she was seeking a property for herself and her daughter.  She stated that he was on notice of her HAP and family status.  She stated that the Respondents actions placed her in a very bad position, that she needed to find a home for her and her daughter and that the only option ultimately given to her was to put an 80-year old man at risk.  She stated that she could not understand why the requirement changed from being a landlord reference to a written landlord reference and why the matter was not escalated to senior management.

Cross examination of the Complainant:

The Respondent representative asked the Complainant if it was correct that she had applied through a property website and received an automated reply.  The Complainant confirmed that this was correct.

The Respondent representative asked if she accepted that the initial response stated that the applicant was required to submit “either a landlord of employment reference” and she confirmed that it did.  He put it to the Complainant that she could, perhaps have asked the landlord to leave the written reference in the garden for her to collect, to which she responded that this would have required her to travel outside of the 5K limit. The Respondent representative posed the question was housing not an exception?

The Respondent representative asked the Complainant if she had received a clear letter stating the requirements, why then did she make phone contact?  The Complainant responded that she wished to check, in the context of Covid restrictions if the Respondent would make an exception and accept a verbal reference.  The Respondent representative asked if she had ever contacted the landlord and the Complainant said that she had.

The Respondent representative asked the Complainant if “S” had advised her that she could use an employment reference and she confirmed that he had.  He asked her to confirm that she was not in employment and the time and she did so.  He then put it to her that she did not meet the criteria and she confirmed that yes, but that it was very specific criteria.  The respondent representative asked the Complainant if she would accept that the circumstances at the time were not normal and the Respondent had an obligation to staff not to have “open house” showings and the Complainant agreed that this was the case.

The Respondent representative noted that in the context of Covid restrictions there were reduced numbers seeing property and asked the Complainant if, in these circumstances it was reasonable that the Respondent carry out checks for their protection by filtering people by the industry standard.  The Complainant accepted that it was reasonable.

The Respondent representative put it to the Complainant the all applicants received the automated reply so therefore she was not treated less favourably.  The Complainant responded that she had no issue with the initial email but with the comments made by “S” when he said that it was office policy to only let to people in current employment and when he asked her when she would be getting employment, she stated that this was where the discrimination occurred.

A discussion then took place in relation to information sought by the Complainant in relation to the numbers of HAP applicants and their success rates.  The Respondent put it to the Complainant that she had been issued with a confidentiality document in good time which she had failed to sign and return and that in those circumstances she had not been furnished with the data requested.  The Complainant accepted that she had only read the document the previous day.

The Respondent representative put it to the Complainant that she was not an average “lay litigant” and the Complainant confirmed that she had completed her law degree.  The Respondent representative advised that the Respondent received a high level of HAP applicants and that 75% of lettings are to HAP applicants.

In conclusion the Respondent representative reminded the Complainant that she had stated that she was not debating the first email, however he put it to her that she was seeking an exception, that she wanted discretion.

The Respondent did not provide a submission in advance of the hearing.  However, the Respondent did provide a copy of the ES2 Form and a comprehensive statement from the employee SO’N who was involved in the matter.

ES2 Form

The Respondent indicate that initial contact from the Complainant was 22nd April 2020, where she encountered “S” operating alone in the office, due to Covid-19 restrictions. He was only two months into his employment. The Respondent stated that after investigation it became apparent that the recollection of the verbal exchanges differed between the complainant’s version and those of “S”. The respondent stated that he would not have said that landlords will only let to employed persons, that he had insufficient experience at the time to make such a statement and that he assuredly did not preclude the Complainant from viewing the property.

The respondent stated that the Complainant submitted a former employer’s reference, but this was received after the property had already been let to a new tenant.  The respondent outlined that the demand for rental property is such that once a letting is advertised, there is a very short time before a new lease is agreed.

The Respondent denied discrimination with regard to the Complainant’s gender, her civil status or her family status and stated that the Company is fully aware of the requirement not to discriminate on any grounds. The Respondent further stated that when landlords say they prefer employed tenants, the Respondent will always advise them that this is discriminatory and therefore unacceptable.

The Respondent advised that their normal practice is, per industry standards, to seek two references for prospective tenants and that these would generally be from the previous landlord and an employer. The respondent acknowledged that patently, this could not always be the case, given individuals may not have previously rented and may be currently unemployed. In these circumstances the Respondent stated that they have to garner assurances from alternative

sources.

The Respondent stated that it was unfortunate that the Complainant did not seek to escalate her purported problem to senior management, where any misconceptions could have been resolved swiftly.

Statement of “S”

The Respondent submitted a statement entitled “Statement from SO’N”.  The statement was not signed or dated.

In that statement “S” stated that the property that the dispute related to was first advertised on the morning of Thursday the 16th of April 2020 and that as per the usual course of business, enquiries soon started to flood into the info mailbox from applicants who were requesting a viewing. He stated that one of his colleagues in the office started to respond to each enquiry received that very same morning. He stated that it is always in the Respondents’ best interest and the interest of

the landlord to respond as quickly as possible to expedite the letting process as efficiently and

effectively as possible and that this is particularly the case whereby the landlord has a mortgage repayment, as any downtime in the rental of the property can cause issues.  He stated that his colleague sent the general “lettings response” email to each applicant who had sent an enquiry and that this standard email contained a message thanking the applicant for their enquiry, requesting

that written landlord or employment references (if applicable) are sent across at the earliest

convenience and that an agent will be back to them in relation to a viewing.

“S” stated that once the email responses were sent, applicants quickly started to reply with their written references. He stated that his colleague started to review these and emailed back each applicant to start to arrange viewings and that viewings were scheduled to be conducted that afternoon. He stated that his colleague attended these viewings on Thursday afternoon with multiple applicants and that for any of the applicants who liked the property (after viewing in

person) they were passed across to the landlord that evening for consideration.

“S” sated that on Friday the 17th of April 2020 either himself or his colleague contacted the landlord regarding the applicants who had been passed across the evening before. The landlord confirmed that she had not yet assessed the applicants, that she would look over each one at the weekend and in the meantime, the Respondent was to continue advertising and showing the property. The Respondent decided to leave the property advertised over the course of the weekend so that further applicants could apply.

He further stated that on Monday the 20th of April 2020, upon coming into the office, he started his typical routine of checking whether any urgent emails had been received into the info mailbox over the weekend and he noted that there were numerous additional enquiries received for the property. He stated that one of these enquiries was received from the Complainant, that she had made an enquiry through the advertisers on Saturday the 18th of April 2020 at 5.06am. He stated that as with all the additional enquiries received over the course of that weekend he responded with the general “lettings response” email at 9.27am. He clarified that this email is standard operating policy and is used to communicate the conditions upon which the respondent will consider applicants. It sets forth the requirement for written references (Landlord or employment) to be emailed to the Respondent before property viewings can be arranged.

He stated that the Respondent required no further information from the applicant other than the stated reference(s). The additional applicants received on the same morning responded with their written references and, as a result, further viewings were then

scheduled to take place on the afternoon of Wednesday the 22nd of April 2020. These viewings were scheduled to be conducted by his colleague. No further correspondence had been received from the Complainant at that point.

On Tuesday the 21st of April 2020 a further conversation took place with the landlord who stated she had reviewed the applicants sent across thus far, however, she had not made a final decision and enquired as to whether any further interest had been received. He stated that his colleague explained that a further three viewings had been scheduled for the following afternoon and that if these applicants were interested, they would also be passed across for consideration.  He further stated that on Wednesday the 22nd of April 2020 his colleague attended the three viewings at the property, that the first viewing took place at 2pm, second viewing at 2.15pm and a third viewing at 3.10pm.

“S” stated that at 3.01pm an email was sent to him from the Complainant and that this was the first correspondence received back from her since he had responded to her initial enquiry. He stated that the Complainant enquired whether it would be possible to ring the office as she thought that the office may have been closed (due to COVID). After reading the email, he stated that he rang the Complainant as a matter of courtesy.  He introduced himself and confirmed that he was ringing in relation to her expressed interest in the property advertised.  He stated that the Complainant confirmed that she was very interested in viewing the property, however, she had a concern regarding obtaining a written reference from her current landlord as he was elderly, was not familiar with modern technology and was cocooning due to COVID.  He stated that she asked

whether it might be possible to send the landlord details across via email where he could then be

called to verify her tenancy history. At this point, I took the opportunity to state that there had been

a lot of interest received on the property already, and, that multiple viewings had already taken place. He stated that he did this to manage expectations, as it would not be fair to put someone forward for a property where they potentially might get their hopes up unnecessarily as there is a long line of people ahead of them in the selection process. He stated that he confirmed that for an application to progress to view any property, written references must be received. As the Complainant had already stated that she was finding it difficult to obtain a written landlord reference, I advised that there was no need to worry about the landlord reference as other references could always be given as outlined in the original email sent to her. He stated that he then proceeded to ask whether she was currently employed as an employment reference was also acceptable and that the Complainant confirmed that she was not currently employed,

however, she also confirmed that she would be able to provide her most recent job reference from a previous employment.

“S” stated that the Complainant also confirmed that due to not being employed she was in receipt of HAP.  He stated that he asked the Complainant whether this previous employment reference would be a written form of reference and she stated that she had a text message which she had received from the manager in her previous employment confirming the period that she worked there. She advised that this could be sent across. I reiterated that to proceed with an application the office had a policy that only written references were accepted. These were typically a letter format and have signature applied. He stated that in the case that no signature is applied, the Respondent performs a call back procedure to verify the authenticity of the reference. I mentioned that this was the procedure that we had in place for all our landlords and that it was common practice across the industry. He stated that he also asked the Complainant whether she would be able to send across a copy of her HAP approval letter or HAP entitlement letter as this would confirm that she was in receipt of HAP and would also confirm her payment capacity. He outlined that it can often be

the case that a tenant may be in receipt of HAP, however, the amount they are entitled to may not

be enough to cover the rent. He stated that the Respondent always advises HAP tenants to contact their HAP office to seek to avail of more support, to help them throughout their tenancy and take the pressure off.

“S” stated that the Complainant responded “Ok” regarding the HAP letters and then proceeded to confirm, again, that she was not currently employed due to finishing her third year in college, where she was studying law, and that she had her final exams coming up. Therefore, she was not able to provide a current employment reference. He stated that he confirmed to the Complainant again that it was office policy that only written forms of reference could be accepted and that this was indicated as a firm starting point to all applicants as it was to the Complainant.   He stated that his request was met with a period of silence where he proceeded to ask the Complainant to send across whatever written documents she had, and that the Respondent would review and get back to her.  He stated that he felt that the phone call was merely going around in circles as he

kept stating that written references were required (he stated that he took the call as a courtesy to the Complainant, that he had been clear in the first email about the policy, and that he began to feel that the Complainant was simply trying to circumvent the requirements. He stated that he also felt that she was trying to intimidate him by telling him that she was a Law student), and he stated that she kept stating that she wasn’t employed and was struggling to obtain her landlord reference.  “S” stated that his last comment was met with another period of silence, where the Complainant  then said “ok, thank you” to which he replied with “thank you, thank you” and the phone

conversation then ended.

Shortly after the phone conversation, at 3.43pm “S” stated that he received an email from the Complainant where she confirmed that she was in receipt of HAP of €680 per month. She also listed her previous landlord contacts – the property they owned, their names and phone numbers. She also attached a copy of a text message from her previous employer – (all of which he stated, were clearly not what the Respondent required and what had been conveyed to her in his initial email).

“S” stated that she confirmed that her current rent was €800 and that she had been paying this up to date, her email also asked for confirmation of whether the Respondent office held a ‘current

employment reference policy’ which stated that the Respondent did not offer viewings or lettings to a person if they could not provide a current employment reference. He stated that upon reviewing the email, he firstly noted that she had not provided the written references requested nor

had she provided the HAP approval or HAP entitlement letter. Secondly, he stated that he was quite confused and taken aback by her comment regarding the Respondent not offering viewings to

unemployed persons. He advised that his initial thoughts were that she had misinterpreted what he had said when stating that the Respondent only progresses applicants who provide written forms of reference. He further advised that at 3.47pm he replied to the Complainant to apologise for any misinterpretation and informed her again that the Respondent does ask all applicants to send either written landlord or employment references, where these are applicable. He stated that he genuinely thought “there must have been crossed wires and she had mistaken what I had said.” 

He stated that the Complainant replied to his email at 3.59pm to confirm that she could arrange written references and that there had not been a misinterpretation. He advised that in that email she also stated that he had directly confirmed on the phone that landlords specifically request employment references and as an office policy the Respondent does not offer viewings without one. He also advised that she asked for confirmation that he rebut his statement and requested that he work to his best efforts to treat her equally, regardless of her employment status. “S” stated that he replied to the Complainant at 4.34pm to state that he did rebut his statement and that in so doing he was referring to rebutting the statement he made regarding misinterpretation, as he believed that he had been clear and concise in what he had requested. He stated that what he meant on the phone was that the Respondent does not accept any applicants without written references, whether these are landlord or employment – the emphasis being on written. He stated that he felt as

though he had to reiterate the point. He advised that he also confirmed to the Complainant that he understood she was not currently in employment and requested her to send across her written landlord reference as she had stated in her earlier email that she was now able to provide written references and so he assumed that providing the landlord reference was no longer such a big problem.  He stated that he decided at this point, to reiterate that the property had already been shown and that applicants were currently sitting with the landlord for consideration as he wanted to make it clear that if these applicants were not successful then the Respondent would be in touch regarding her application. He stated that this was in an effort to manage expectations. He stated that he knew there was a strong possibility that the property would end up “let agreed” from the viewings which had already taken place. He stated that this turned out to be the case one

of the applicants who had viewed the property on the afternoon of the 22nd of April 2020 was successful in renting the property.

“S” stated that after this email exchange he heard nothing further from the Complainant regarding her written landlord reference or her HAP approval letter. The next communication from the Complainant was an email regarding a complaint form, where she asked him to fill out the form and provide details regarding how many HAP tenants the office managed, whether the Respondent had refused any HAP tenants previously etc. he stated that he was shocked by this email and alerted it to his colleague straight away, this was then escalated to the Director of the Respondent who advised that he and his colleague were not to complete the form and were not to communicate with the Complainant regarding the form or her complaint.

In conclusion, “S” stated that he was very sorry if the Complainant misinterpreted what they discussed. He stated that the Respondent policy is clearly set out in the initial requirements email and that he had no doubt that if Miss Hickey could have complied with the requirements, then she would have received consideration. He stated that he felt that her subsequent call to his office was an attempt to circumvent the stated requirements and as far as he was concerned the Complainant was informed by the initial email of what the policy was. He stated that he didn’t know she was unemployed when he sent this email, nor did he know her family status or employment status or indeed anything else about her.

Respondent Representative Position at hearing:

The Respondent Representative pointed out that this period of time had been particularly difficult for businesses, that the instant matter took place during the first lockdown arising from Covid 19.  He stated that the industry standard in terms of carrying out due diligence was to seek a written landlord reference or a written employment reference.  He stated that all applicants for a property received an automated email response that clearly set this out.  He also pointed out that arising from government restrictions during Covid open house viewing was not permitted and that in those circumstances the Respondent was required to filter people based on the criteria set down and to do their utmost to accommodate everyone to view the property.

The Respondent representative stated that the Complainant had, like all other applicants, received the automated email containing the details of what was required.  He stated that this had been explored with her on the phone call on 22nd April , but that at the end of the day the Complainant was unable to comply with the requirements.  He stated that it would have been possible to have addressed the matter of the elderly landlord but that no relevant documentation materialised within the required timeline.  He stated that in order to sustain a case under the Equal Status Act the Complainant was required to establish a prima facie case, and that in circumstances where the requirements for all applicants was outlined in the email issued automatically to all applicants there could not be a prima facie case.

Witness evidence given by “S”

“S” confirmed that he was working as an Estate Agent with the Respondent and that he was the employee who had dealt with the Complainant in April 2020.  He confirmed that he had seen the Complainant’s enquiry in relation to the property advertised, that she had received the automated email and that all other applicants had received the same email.  He further confirmed that the respondent was contractually obliged to get a written reference and he confirmed that everyone who supplied such a reference was given the opportunity to view the property.  He advised that the Complainant did not supply the required reference and that this led to phone call which was the subject of the instant matter.

He stated that the Complainant left a message outlining concern about the landlord written reference and that he had advised her that the property had been advertised for a while and that there were multiple applicants.  He further stated that he reminded her of the requirement for a written reference and advised her that she could instead send the recent employer reference.  He stated that the Complainant advised him that this also was not possible as that reference was in text form, rather than written.  “S” confirmed, in response to a question from the Respondent Representative that he did not have scope to make an exception.

The respondent Representative asked “S” about his response to the email of 22nd Aoril from the Complainant (At 3.58) where she stated that she could arrange for a written reference.  “S” stated that this was only partially true, that the Complainant had a text reference.  He stated that he “didn’t mean to confuse” but that only a written reference was acceptable and he apologised for not stating clearly that a written reference was required.

The Respondent Representative asked if the Complainant was treated differently and “S” stated that she was not.  He stated that this all occurred in the early stages of the Covid pandemic restrictions and that staff were attending the office on a rotation basis including senior staff.  He confirmed that this was his first job, that he had worked on his own a few times, that he had received in house training and that he would refer any questions he could not answer to a more senior colleague. 

Cross examination of “S”

In response to questions from the Complainant “S” confirmed that he did not refer the issue of discrimination raised by the Complainant to senior management as he felt the criteria for making application was clear from the original email.  The Complainant then put it to him if this was the case even after she had asked him to do so, to which he responded that when “a member of the general public says discrimination it does not mean it is necessary to escalate the issue.”  The Complainant again asked “S” if he considered it necessary to raise the matter at senior level after a member of the public had raised such a concern and he responded “no”.

The Complainant asked “S” if he had received her statement before he completed his account and he confirmed that he did.  She put it to him that in that context his account of events was written more than a year and a half after the phone conversation had taken place and he confirmed that was the case.  The Complainant referred to “S”’s statement that he “felt the call was going in circles” and drew attention to his statement that he “may not have said written reference”. “S” responded that he may sometimes have given the advice with or without being specific about the requirement for a “written” statement.  The Complainant drew attention to the change in testimony.

The Complainant asked “S” if he was sure he could remember the conversation and he confirmed that he was sure.  She asked if there was a normal flow to the conversation and he responded that he did feel he had to keep repeating to her about reference.  She asked if at any point the conversation was stopped and he stated that yes when he asked for the HAP form.

She asked “S” if he recalled asking her when would she get employment and he stated that he did not recall asking that question.  The Complainant put it to him that he seemed to be indicating that only one question was being repeated and answered and “S” responded that the conversation was going in circles, that he was constantly repeating advice and providing options.  The Complainant further put it to “S” that he could not be specific about what was said given the passage of time before he wrote up his statement and he acknowledged that he may have omitted something.

The Complainant referred “S” to his email where he stated “I meant to say” and asked if this meant he didn’t say it and he responded that it indicated he might possibly have said it but that what he meant was…  The Complainant referred him to their discussion about the standard of tenancy and stated that he had a duty to recall the discussion, to which he responded that he did not remember.

The Complainant asked “S” when he did not receive the HAP form why he did not request it and he responded that it had been covered in the formal email, that the first “port of call” was the email and that he had requested the HAP form quite a few times during their phone conversation.  The Complainant put it to him that in his statement he only documented that he asked once about the HAP form.  “S” responded that he asked twice and that it was referenced in the first email.

The Complainant advised that she had submitted an employer reference and he responded that it did not meet the criteria.  She asked why then did she receive an email saying “thank you for your application”.  “S” responded that he did so out of “pure habit”, that he sent such emails on a daily basis.  The Complainant asked him why he did not get back to her to advised that it did not meet the criteria to which “S” responded that people were already selected for the viewing, that the reference needed to be on headed paper and signed and that the Respondent had a duty of care to the landlord and not to members of the public.

The Respondent Representative intervened stating that the Complainant had sought to be treated differently, that this was akin to a “blind request”.  The Adjudication Officer advised the representative that he should not intervene in a witness testimony.

“S” stated that the Complainant’s application did not meet the requirement in relation to HAP and he stated that he could only apologise for any miscommunication.  The Complainant asked why he had not escalated the matter when she made mention of discrimination to which he responded that he did not bring it back as he felt he had been clear from the outset.  The Complainant asked him if he had escalated the matter when he got the complainant form, that she had received an email stating “we will be in touch”.   He stated that he had mentioned to her that the house was “in process” and when the owner had come back the property was let quickly.  He stated that he had felt a “bit intimidated”.  She asked when he had received her complaint “why not sort it then?”, to which he replied that he felt “intimidated by the information.”

The Complainant asked “S” how familiar he was with HAP and he confirmed that he had little involvement, that he had a brief knowledge only.  She asked if he was familiar with HAP payments and he acknowledged that he was, that HAP were the “most preferential tenants” as they were less likely to default and he acknowledged that he was aware that each such tenant might have different entitlements.  The Complainant confirmed she had concluded her cross examination.

The Complainant concluded by stating that the witness was clearly stating that he required a current employment reference, that he had given conflicting evidence in relation to whether or not he was clear that such reference needed to be written, that he was relying on the content of the first email to prove that no discrimination occurred but that from her perspective she was clear and unambiguous that the discrimination arose after that email was received by her.

Witness evidence given by Ms. CT, Commercial Director

Ms. T confirmed that she was the Commercial Director of the Respondent company.  She confirmed that she had received a request for commercial data.  She advised that she believed that the data would demonstrate that the Respondent does not discriminate against Hap recipients.  She advised that it had been a long a tedious process extracting the data and had taken considerable time.

Ms. T further confirmed that the Complainant did not avail of the opportunity to review the data.

Cross examination of Ms. T.

The Complainant put it to Ms. T that she was not present on the phone call, to which Ms. T replied that she was referring to the data and what it showed and that the Complainant did not fill out the required form to have the data provided.

General:

This is a complaint of discrimination pursuant to the Equal Status Act.  It is on the grounds of gender, family status and HAP.  It relates to a claim that the respondent’s alleged actions in advising the Complainant that it required a “current employment reference” and only present landlords with prospective tenants who are in employment amounts to discrimination on the grounds of gender, family status and HAP. 

I note that Section 5. -(1) of the act states that “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.”

I note that Section 2 defines a service as follows:

“service” means a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes –

(a)   Access to and the use of any place,

It is clear that the respondent is a provider of service to landlords seeking to rent their vacant properties but also to prospective tenants seeking to rent properties.  I am satisfied that the interactions between the Complainant and “S” as an agent of the Respondent fall within the meaning of a service as defined in the Act. I also find that the complainant was seeking such a service from the Respondent and that her complaint of discriminatory treatment comes within the scope of the Act.

The complainant in this case alleged that she was discriminated against and treated less favourably on the grounds of gender, on the grounds of family status and on the grounds of HAP. 

Gender Discrimination

I must now consider whether the complainant has established discriminatory treatment on the gender ground.  In considering this matter, I paid close attention to the complainant’s written complaint form, her written statement and to the evidence given by her at hearing.

Section 85A (1) of the act provides: that “(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In any case involving an allegation of discrimination an Adjudication Officer must first consider the allocation of the burden of proof as between the complainant and the respondent. 

Section 85A provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if an Adjudication Officer considers them to be sufficiently significant to raise an inference of discrimination, then the onus of proving the contrary shifts to the respondent.  If a complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination the claim cannot succeed.

It is for the complainant in the first instance to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the respondent.

In Melbury Developments Ltd. V Valpeters [2010] ELR 64, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The established test for ascertaining if the burden of proof shifts to the respondent was set out by the Labour Court in its determination in Mitchell v Southern health Board [2001] ELR 201.  That test provides:

1)     It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the complainant fails to do so, he or she cannot succeed.

2)     If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination

3)     If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent.

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.

In the instant case the Complainant did not point to any male comparator in either her complaint form or her statement whom she alleged was treated differently by the Respondent.  Throughout the hearing she did not refer to this matter.

In the absence of a comparator and in the absence of any primary facts relating to less favourable treatment of the Complainant to any male service user I must conclude that the Complainant has not succeeded in establishing a prima facie case of gender discrimination.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground.

Family Status Ground

I must also consider whether the complainant has established discriminatory treatment on the family status ground.  In considering this matter, I paid close attention to the complainant’s written complaint form, her written statement and to the evidence given by her at hearing.

In relation to the complaint that the Complainant was discriminated against by the Respondent on the prohibited ground of family status I note that in establishing a prima facie case of direct discrimination, the Complainant must 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 a single parent and that the Respondent was on notice of her status in this regard.  However, the Complainant did not submit details of any comparator whom she believed was treated in a more favourable manner.  There was no comparator outlined in her complaint form nor in her written statement; nor was any evidence presented at hearing.  While the Complainant made mention of her single parent status, she made no link between that status any actions or behaviours on the part of the Respondent.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground.

HAP Ground

The remaining element of the complaint relates to the claim that the Respondent treated the complainant less favourably on the HAP ground in relation to comments made by an employee of the Respondent in a phone conversation on 20th April 2020 where it is alleged that he:

·       asked if she was currently in employment

·       advised her that her history as a tenant was not relevant

·       advised her that there was an office policy of only letting to people with employment references

·       asked when she would be in employment

·       advised that he could not offer her a viewing as she was unemployed

In relation to the complaint that the Complainant was discriminated against by the Respondent on the ground of HAP I note that in establishing a prima facie case of direct discrimination, the Complainant must establish (a) that they are covered by the relevant 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 was a recipient of HAP and that the Respondent was put on notice of this during the aforementioned phone conversation.

In relation to the second point above, I note that Section 3 of the Equal Status Act prohibits discriminatory conduct on ten grounds in the provision of services or the disposal of goods and that included amongst the grounds is the grounds of HAP.

I note also that there was a dispute between the two parties in relation to what was said by the estate agent “S” to the Complainant during their phone conversation and I note that there were no witnesses to that conversation.  In those circumstances I must consider the statements submitted by the parties, and in this regard I note that the Complainant detailed her concerns in writing on the day of the phone call and completed her ES1 form within days.  I note that in her evidence she was consistent and clear in providing details of what was said during the call.

I note that “S” did not write up his statement at or close to the time of the phone discussion, but acknowledged at hearing that it was written circa a year and a half after the event and was written after seeing the Complainant’s statement.  I note that during the hearing he apologised for miscommunication on more than one occasion and indicated that he could not recall saying certain things while engaged in the phone conversation with the Complainant.  I also noted that the email correspondence between the parties which were provided by the Complainant would support the Complainant’s account of the discussion.

In these circumstances I find the evidence given by the Complainant to be credible and I have lent a certain weight to it in my consideration of this matter.  Accordingly, I find that the Complainant has succeeded in establishing a prima facie case of discrimination on the ground of HAP.

The Substantive Case of Discrimination on the Ground of HAP

I note the details of the Complainants case as set out in her complaint form and her statement.  I understand her complaint to be that she was discriminated against on the ground of HAP by the Respondent and that this first occurred on 22nd  April 2020 during a phone call with an employee of the Respondent where she was first asked for job references and if she was employed and where she was advised that the office had a policy of only letting to people with employment references.  I note that she alleged that she was advised that this was at the request of landlords and that she was advised that she could not be offered a viewing because she was unemployed and did not have a current employment reference.  I note also her allegation that the employee advised her that the Respondent owed it to landlords to “let to people of a certain standard.”

I further note that the Complainant submitted that she advised the employee that such a policy would constitute discrimination, that she was in receipt of HAP. And that he should bring this matter to the attention of senior management.  I note that the Complainant also submitted that the Respondent employee stated that “we do let to HAP, just not this standard of property.”  I further not the Complainant’s position that despite her raising her concern directly with the employee, at no time during the phone conversation, did he indicate that she had misunderstood him.

I note that the Complainant’s evidence at hearing, and under cross examination was consistent with statements made in her complaint form, in her ES1 Form and in the written statement provided and I note that her account of events was written within days of the phone call. 

In relation to the Respondent position, I note the content of the written witness statement from S O’N and submitted by the Respondent and I note that it was not signed nor dated. I note the witness statement that the property in question was advertised on 16th of April, that there were a large number of applicants and that all applicants received  the general “lettings response” email and that this standard email contained a message thanking the applicant for their enquiry, requesting that written landlord or employment references (if applicable) be sent across at the earliest convenience and that an agent would be back to them in relation to a viewing.

I note the witness statement that once the email responses were sent, applicants quickly started to reply with their written references and that his colleague commenced arranging viewings.  He stated that his colleague attended these viewings on Thursday afternoon with multiple applicants and that for any of the applicants who liked the property (after viewing in person) they were passed across to the landlord that evening for consideration. I note his statement that the property continued to be advertised over that weekend and that numerous additional enquiries were received by Monday 20th April. I note further that he stated that all the additional enquiries, including one from the Complainant, received the general “lettings response” email at 9.27am. I note his statement that the

Respondent required no further information from the applicant other than the stated reference(s) outlined in that email. I note that he stated that the additional applicants received on the same morning responded with their written references and, as a result, further viewings were then scheduled to take place on the afternoon of Wednesday the 22nd of April 2020 and that no further correspondence had been received from the Complainant at that point.  I note that 3 further viewings were scheduled to take place on 22nd April at 2 pm, 2.15 pm and 3.10 pm.

I noted the witness statement that he rang the Complainant on 22nd April upon receipt of her email and that she outlined her concern regarding obtaining a written reference from her current landlord as he was elderly, was not familiar with modern technology and was cocooning due to COVID.  I note that he stated that he advised her that there had been a lot of interest received on the property already, and, that multiple viewings had already taken place and that he confirmed that for an application to progress to view any property, written references must be received.  I further note that he stated that as she was finding it difficult to obtain a written landlord reference, he advised that there was no need to worry about the landlord reference as other references could always be given as outlined in the original email sent to her. I note that he stated that he then asked whether she was currently employed as an employment reference was also acceptable and that the Complainant confirmed that she was not currently employed but that she would be able to provide her most recent job reference from a previous employment. I note that in his statement he confirmed that the Complainant did confirm that due to not being employed she was in receipt of HAP. 

I note his statement that he asked the Complainant whether this previous employment reference would be a written form of reference and she stated that she had a text message which she had received from the manager in her previous employment confirming the period that she worked there. She advised that this could be sent across. I note his statement that he reiterated that to proceed with an application the office had a policy that only written references were accepted.

Finally, I noted that the witness stated that the property was already let by the time of receipt of the Complainant’s documentation.

I note the evidence given by that witness I note the evidence given by the witness “S” at hearing and in particular I note that he confirmed that he wrote that statement after seeing the Complainant’s statement and approximately a year and a half after the phone call.  I note that witness gave evidence that the respondent was contractually obliged to get a written reference and that everyone who supplied such a reference was given the opportunity to view the property.  I note that he advised that the Complainant did not supply the required reference and that this led to phone call which was the subject of the instant matter.

I note that he described that during the phone call he had advised the Complainant that the property had been advertised for a while and that there were multiple applicants.  He submitted that he reminded her of the requirement for a written reference and advised her that she could instead send the recent employer reference.  I note that he stated that the Complainant advised him that this also was not possible as that reference was in text form, rather than written and I note that he confirmed that he did not have scope to make an exception.  I note that the witness confirmed that he had apologised in the email of 22nd April for not stating clearly that a written reference was required and that the Complainant was not able to provide this as her former employer reference was by text.

There are some aspects of this case that are not in dispute between the parties and I note them as follows:

·        That the complainant made an application to view a specific property in April 2020

·        That further to that phone call she received a call from “S” on behalf of the respondent on 22nd April 2020

·        That she had a concern about the necessity for a written landlord reference in the context of her landlord’s necessity to cocoon during Covid

·        That a discussion took place between them as to how she could satisfy the requirements set out in the email of 20th April in order to obtain a viewing

·        That a number of emails were exchanged between the Complainant and “S” on 22nd April arising from the discussion

·        That the Complainant documented her concerns in the ES1 Form on 22nd April

·        That “S” wrote his statement after seeing the Complainant’s statement and approximately a year and a half after the phone call had taken place.

It is also evident that the dispute, between the parties, centres on what was said during the phone conversation, statements which the Complainant believes go to the heart of her allegation of discrimination on the grounds of HAP.  In this regard I am swayed by the fact that the Complainant account of events is, to all intents and purposes, a contemporaneous account, whereas the witness statement, on which the Respondent relies was written a year and a half after the event.   It is also evident that the Complainant’s testimony at hearing was consistent with her written account of events, whereas the key witness “S” varied in his recollection, and in some instances could not recall at all.

In an effort to ascertain if there was other independent means of verifying the content of the discussion I turned to the emails exchanged to establish what light thes might shine on that discussion and I note the following:

Email of 20th April at 9.27 am – from SO’N to the Complainant seeking written landlord and employment (if applicable) references and confirming that references were required prior to arranging a viewing.  In bold italic print it also advised that “with the current situation all viewings have been put on hold but we are still collecting references so when we are given the go ahead we will be in contact to arrange viewings.”

Email of 22nd April at 3.01 pm – from the Complainant asking if she could phone or if the office was closed due to Covid.  It is clear that the witness “S” phone the Complainant upon receipt of this email.

Email of 22nd April at 3.42 pm – from the Complainant providing details of HAP payments and current rent, together with contact details for her previous landlords.  She also attached an email reference from her previous employer.  In that email she referred to the phone conversation and advised that “I would like confirmation that you do or do not hold a policy initially stated as your “current employment reference policy”, which you stated the office will not offer viewings or lettings to a person if they cannot provide a current employment reference i.e. an unemployed person of a person in receipt of social welfare”

Email of 22nd April at 3.47 pm – from SO’N where he stated “I do apologise for the misinterpretation.  As mentioned in the mail I initially sent to you from your enquiry we do ask applicants to send a written landlord and employment (if applicable) reference.”

Email of 22nd April at 3.58 pm – from the Complainant stating “As per the employment sorry no misinterpretation. Directly stated by you during our phone call.  Your landlords specifically request employment references and as an office policy you do not offer viewings without one.  I would just like a confirmation that you do indeed rebut this statement and you will work to your best efforts to treat me equally. With or without employment.”

Email of 22nd April at 4.33 pm – from SO’N stating “I do rebut my statement, what I meant to say was that we don’t accept applicants without written reference, be it landlord or employer or both.  I understand you are not currently working so if you can send me your written landlord reference.  We will then be in touch if it is available.  This house has already been shown and is now currently with the landlord.  If it is not rented out we will be in touch.”

Having considered these emails, the various submissions and the evidence given by the parties at hearing I am persuaded that the account of events described by the Complainant are broadly accurate and I have formed the view that “S” did advise the Complainant that the Respondent required a current employment reference and did further advise her that it was office policy to not offer viewings without such a reference.  I am also concerned that at the time of initial contact between the Complainant and the Respondent there was no indication that the property would become unavailable for viewing so quickly and, in fact, the standard general email issued by the Respondent indicated that “with the current situation all viewings have been put on hold”.  This email was issued on 20th April, yet by the afternoon of 22nd April the Respondent would suggest that all viewings were completed and a closed list of potential candidates given to the landlord. I do not find this proposition credible.

Based on the foregoing and in the context that the Complainant had put the Respondent on notice that she was in receipt of HAP I find that the Respondent’s conduct in this regard did constitute discrimination on the prohibited ground of HAP.

I found that the complainant had not established a prima facie case of discriminatory treatment on the gender or family status grounds, contrary to the Equal Status Acts.

However, I also found that the Complainant had established a prima facie case of discrimination on the ground of HAP and that the Respondent conduct did constitute discrimination on the prohibited ground of HAP, contrary to the Equal Status Acts.

In these circumstances it is my decision that this complaint is well founded. Having regard to the obvious impact of these actions on the Complainants’ opportunity to secure a property and to the factors outlined above under findings, I order the Respondent to pay the Complainant €7000 in compensation for the effects of the prohibited conduct.

Gender discrimination, family status discrimination, HAP discrimination