ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00051439

Parties:

	Complainant	Respondent
Parties	Frank Zimmermann	Patricia Geraghty

Representatives

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00063052-001	24/04/2024

Date of Adjudication Hearing: 04/09/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (usually in the form of an ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or within two months of the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.

Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of conducting an investigation into claims of discrimination and I have heard, where appropriate, the interested parties. I have also considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I shall provide for redress (s.25 (4)).

Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).

It is also noted that discrimination can occur where an apparently neutral provision would put such a person at a particular disadvantage compared with other persons unless the provision can be objectively justified by a legitimate aim. This is Indirect Discrimination and is covered in Section 3(1) (c).

Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also prohibits discrimination in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration.

Section 5 (1) prohibits discrimination in the following terms:-

“A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

The Section reads

38A.—(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

This principle is clearly enunciated in the equivalent provision in the Employment Equality Act under discussion in the case of Melbury Developments Limited -v- Valpeters [2010] 21 ELR 64 :

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination must be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and language of this provision admits no exception to that evidential rule.”

Under Section 27(1) of the Act, redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill or train staff providing a service.

The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is in line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.

Discrimination is set out in Section 3 of the Act (as amended). Of significance in these proceedings is Section 3 (3B) which sets out that the providers of accommodation services are prohibited from discriminating against someone on the “housing assistance” ground i.e. on the ground that they are in receipt of a rent supplement, housing assistance payment or other social welfare payment. The housing assistance ground protects anyone who has applied for and is eligible to receive such payments. The protection is intended to apply to existing tenants and to those looking for accommodation. Discrimination may take the form of refusing to allow a person look at or rent a property, refusing to accept the rent supplement or a refusal to complete the appropriate forms etc.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the party that turned up that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there might be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the party that gave evidence on Affirmation. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a:

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset when it came time to hear the Complainant’s evidence, the Complainant was happy to make an Affirmation to tell the truth. The Complainant had provided me with a number of relevant evidentiary documents in advance of the hearing date. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.

The Complainant alleges that he was Discriminated against when his request to be considered for an advertised tenancy was refused on the grounds of his being in receipt of Housing Assistance Allowance.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC. I am satisfied that the Respondent was in email communication with the relevant WRC case officer unit up to the 30th of July 2024.

The Respondents non attendance was not expected and post hearing the Respondent was given an opportunity to clarify her non-attendance. Nothing was forthcoming.

Findings and Conclusions:

The Complainant spotted an advertisement on Daft.IE. The ad was for a house rental in rural Galway and was perfect for his specific needs.

The Complainant wrote directly to the potential landlord confirming his interest. The Complainant gave some information concerning his personal circumstances. In particular, the Complainant stated that he was on disability benefit as he has had Prostate cancer and was having treatment. The Complainant also indicated that he was also in receipt of housing assistance. The Complainant gave excellent references demonstrating his trustworthiness.

By return the Complainant was notified by the Respondent Landlord that his application was not being considered as they wanted people who were working to rent the house to. The Complainant was deeply affronted at the manner by which he was dismissed from consideration. He believes the Respondent has jumped to negative conclusions because he was in receipt of the Housing Assistance.

I accept that the Complainant has made out a Prima Facie case that his candidacy as a potential tenant was ruled out either because he had a disability or that he was in receipt of HAP or a combination of both. The Complainant was clearly discriminated against.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

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

CA-00063052-001 – This was a clear case of discrimination, and the Complainant is entitled to be compensated for the effects of the discrimination and prohibited conduct and I award the sum of €5,000.00.

Dated: 14/11/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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