Complainant

Respondent

Parties

Daithi  O'Raithbheartaigh

Ray Cooke Auctioneers

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00073186-001

07/07/2025

The Complainant stated that he was discriminated against both on the HAP and the disability ground in respect of his application to rent a property that the Respondent had advertised in June 2025.

The Complainant stated that in early June 2025 he was actively seeking accommodation while homeless and relying on Homeless HAP support due to a work-related injury and disability.

On 3 June 2025, the Complainant received a viewing invitation from the Respondent for a property in Finglas. The email required prospective tenants to submit documentation including payslips, employer references, and wage-linked bank statements, and stated that failure to provide all required documentation would mean the application could not proceed.

The Complainant immediately recognised that these requirements posed a problem. As a HAP recipient and someone not in conventional employment, he could not provide the wage-based documents listed. Within minutes, he responded to the Respondent’s agent explaining his circumstances, disclosing both his housing assistance status and disability, and asking whether he would still be eligible or whether flexibility could be applied.

Despite sending an initial email on 3 June, follow-up emails on 4 June, and a WhatsApp message shortly before the viewing, the Complainant received no response at any stage before the viewing took place.

Faced with a clear written condition that his application would not proceed without documentation he could not provide, and no clarification from the Respondent, the Complainant concluded that there was no point attending the viewing, as he believed he had already been ruled out. The viewing went ahead without him, and the property was let to another tenant.

From the Complainant’s perspective, the issue was not simply a missed communication. Rather, it was the combined effect of the documentation requirement and the complete lack of engagement after he disclosed his circumstances. He asserted that this amounted to effective exclusion from the process.

The Complainant stated that the requirement for employment-based documents disproportionately disadvantages individuals on housing assistance and those with disabilities who may not be in standard employment. In his view, this constituted indirect discrimination under the Equal Status Acts.

He also highlighted the Respondent’s later admission that the email was poorly worded as confirmation that his interpretation was reasonable. The failure to respond to his attempts at clarification, he says, denied him an equal opportunity to compete for the tenancy.

The situation had a significant personal impact. The Complainant remained in insecure accommodation, paying substantial weekly costs for hostel stays, while also dealing with stress, anxiety, and the ongoing effects of his injury.

The Respondent stated that the Complainant was invited to attend the viewing and was not excluded at any stage. From the Respondent’s perspective, the viewing invitation was standard, and no applicant was required to submit documentation in advance of attending. They stated that the documentation list is typically dealt with after a viewing, once a prospective tenant expresses interest.

The Respondent asserted that the Complainant misinterpreted the email, reading it as a barrier to attendance when no such restriction existed. In the Respondent’s view, the Complainant chose not to attend the viewing based on that misunderstanding, rather than being prevented from attending.

The Respondent highlighted that the rental market is extremely competitive, with hundreds or even thousands of enquiries per property, making it impossible to respond to every message received. They stated that the lack of reply to the Complainant’s emails and WhatsApp message was due to high workload and volume, not any discriminatory motive.

The Respondent further emphasised that they regularly rent to tenants using HAP and other supports, that the method of rent payment is not a factor provided rent is paid, and that the same documentation requests are made of all applicants, not targeted at any group.

While acknowledging that the wording of the original email could have been clearer, the Respondent maintains that this was an administrative issue rather than evidence of discrimination.

From the Respondent’s perspective, there was no refusal of access, no differential treatment, and no causal link between the Complainant’s HAP or disability status and the lack of response to his written communications.

The Respondent also disputed the claim that the Complainant was denied an opportunity, noting that even if he had attended, there is no certainty he would have been selected, as only one applicant can be chosen.

Section 3(3B) of the Act provides:

“For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).”

Section 38A (1) provides-

" 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."

Therefore, the Complainant must first establish a prima facie case of discriminatory treatment. It is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

The explanation provided by the Labour Court in its decision in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is helpful:

“This requires that the Complainant must first establish facts from which discrimination may 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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Interpretation of the Respondent’s Email invitation of 3 June 2025

I have carefully considered the wording of the Respondent’s email dated 3 June 2025.

The documentation list included a requirement for an employer reference “if currently in employment.” I find that this wording is of particular significance. It clearly demonstrates that the Respondent anticipated that some applicants would not be in employment and, accordingly, would not be in a position to provide employment-related documentation.

I also note that two further requirements referred to:

• three months’ bank statements for the account into which wages are paid; and
• three payslips.

In my view, the inclusion of the words “if applicable” in relation to these requirements would have removed any ambiguity. Their absence gives rise to a potentially exclusionary interpretation, suggesting that these requirements applied to all applicants and thereby placing unemployed applicants at a disadvantage.

However, I am satisfied that this interpretation cannot be sustained when the email is considered as a whole. The explicit qualification attached to the employer reference—“if currently in employment”—makes it clear that the Respondent did envisage applications from individuals who were not employed. In that context, I find that the references to bank statements and payslips were carelessly drafted rather than deliberately exclusionary.

Accordingly, it is reasonable to interpret the second and third requirements as applying only to applicants who were in employment and not to all of the applicants for the property. The inclusion of the phrase “if currently in employment” in the first requirement is crucial in supporting that interpretation.

Non-response to the Complainant’s subsequent written communications of 3 and 4 June 2025

It was not disputed that the Respondent did not reply to the Complainant’s emails or WhatsApp message seeking clarification.

However, I must recognise the current housing situation in Dublin, where available properties attract a very high volume of interest. It is common knowledge that agents may receive hundreds of enquiries for a single property.

In those circumstances, I accept that it is not reasonable to expect that every individual query will receive a response and do not find that the absence of a reply, in and of itself, gives rise to an inference of discrimination.

The Complainant’s decision not to attend the viewing on 4 June 2025

The Complainant chose not to attend the viewing on the basis of his interpretation of the email invitation of 3 June 2025 and the absence of a response to his subsequent written communications.

While I understand the Complainant’s position, I find it difficult to accept that this conclusion was the only reasonable course open to him.

In particular, I note that:

·       he had received a clear invitation to attend the viewing

·       the email indicated some flexibility regarding employment status

·       no express refusal of access had been communicated

In those circumstances, it would have been open to the Complainant to attend the viewing with whatever documentation he had available and to clarify the position directly with the Respondent at that point. I cannot understand why, in the absence of a reply to his written communications, the Complainant did not avail of this opportunity in circumstances where letting agents receive huge amounts of correspondence because it is well known that the country is currently in a housing crisis and there is huge interest in any available property.

Considering all of the foregoing, I find that the Complainant has failed to establish a prima facie of discrimination on either the HAP or the disability ground. Accordingly, I find that the Respondent did not engage in prohibited conduct contrary to the Equal Status Acts 2000–2015.

I find that the Respondent did not engage in prohibited conduct under the Equal Status Acts 2000–2015 for the reasons set out above.