Charles McDonagh (represented by MacGuill & Co. Solicitors) -v- Eugene Duff (represented by Brian Johnson & Co., Solicitors)
1.1 This dispute concerns a complaint by Charles McDonagh that he was discriminated against, contrary to Sections 3(1), 3(2)(b) and 3(2)(c) and 3(2)(i) of the Equal Status Act 2000, by Mr Eugene Duff, Ashbourne, Co Meath on the grounds of his marital status, his family status and his membership of the Traveller community. The complainant maintains that he was discriminated against in not being provided with a service which is generally available to the public, contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainant states that he agreed to rent a house at 58 Willowdale, Dundalk for a year, through a property rental agency. However, within a few weeks of moving in, he was given notice to quit. He believes that this occurred because the landlord discovered that he and his family were members of the of the Traveller community.
3.. Summary of Respondent's Case
3.1 The respondent rejects that the complainant was asked to leave because he was a Traveller. He says that the notice to quit was given because of complaints from neighbours and also because he needed possession of the house as his son had secured employment in Dundalk and needed somewhere to stay. The respondent also maintains that he never signed any formal lease agreement for the property and that he had been misled by the letting agents with regard to the tenancy.
4 Delegation under the Equal Status Act, 2000
4.1 This complaint were referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated these complaints to myself, Brian O'Byrne, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
5. Evidence of Complainant
- Charles McDonagh and his wife Teresa Kerrigan were married for 11 years when they moved in late 2002 from Dunsink Lane, Dublin to Dundalk, where they camped in a Council carpark. Mrs McDonagh had been born in Dundalk.
- Towards the end of 2002, the McDonagh family contacted Olivia Donnelly of Louth/Meath Properties with a view to renting accommodation in Dundalk for themselves and their 6 children.
- Over the next 6 months, Ms Donnelly arranged leases for them for 3 separate houses in the Dundalk area but all three proved unsuitable for different reasons.
- In May 2003, Ms Donnelly learned of 58 Willowdale and arranged a viewing for the McDonaghs. On seeing the property, they agreed to take it on a year's lease and to move in on 16 May 2003. Mr McDonagh paid a deposit of €740 for the property and agreed to a weekly rent of €185
- At the time the lease was to be signed, Mr McDonagh had left his family for a few days with the result that his wife, Teresa Kerrigan signed the lease.
- There was no phone, TV aerial or washing machine in the house at the time. Before moving in, Ms Kerrigan asked for a washing machine to be installed and this was agreed.
- The washing machine arrived on 16 May itself and the landlord, Mr Duff was there to oversee its installation. When installed, Mr Duff showed Mr and Mrs McDonagh how to operate it. Mr McDonagh had returned to live with his family at that stage.
- After a few days, Mr McDonagh rang Mr Duff directly to ask to have a TV aerial installed and this was arranged.
- While Mr McDonagh was away from the house over the coming weeks, Ms Kerrigan's brother stayed in the house. While he was there, he arranged with Eircom to have a telephone installed at the address in his name. The brother used the phone a lot while in the house to ring his girlfriend in England. On his return, Charles McDonagh also made use of the telephone service.
- Several weeks after they had moved in, Olivia Donnelly informed Mr McDonagh that they would have to vacate the house as Mr Duff wanted the house for his son who was coming to live and work in Dundalk. They were told that they were being given 4 weeks notice which required that they vacate the property by early July.
- While they were in the house, a heavy vase fell and cracked a new marble fireplace. They told Ms Donnelly about it and made other enquiries as to how to repair it. It was suggested that glue be used but this did not produce a satisfactory outcome and the damage was still visible. The McDonaghs accepted that they would lose half their deposit over this.
- During their time in the house, the McDonaghs learned from Ms Donnelly that several complaints had been made about them to Mrs Duff by neighbours and that Mr Duff had received a threatening anonymous phonecall saying that the house would be "broken up" if the family were not asked to leave.
- On hearing this, Mr McDonagh contacted a local councilor who raised the matter directly with Mr Duff and afterwards phoned Mr McDonagh to tell him "don't worry".
Evidence of Respondent, Eugene Duff
- Mr Duff has owned 58 Willowdale since 1982 and has being leasing it since. He himself lives 45 miles away in Ashbourne
- Over the years he has had many tenants including two sets of Travellers. At the Hearing, Mr Duff produced a notebook which he has kept over the years containing a full history of tenants and dates of occupation. The book showed that the Traveller families had rented the house in 1997 and 1998.
- Prior to May 2003, he looked after all aspects of the lease himself including advertisements, viewings, lease agreements and collection of rent
- In January 2003, a lady who had been a tenant for 3 years moved out and he decided to carry out some major refurbishments on the house.
- Between January and April 2003 he installed a new fireplace, pvc windows, a gas fire, timber floors, new carpets and natural gas at a cost of €12000
- In May 2003, Mr Duff placed an advert for the house in a local newspaper. He also informed the local Students Union in Dundalk that the house was available for rent. He received two enquiries but these did not work out
- Towards the middle of May, he received a call from Olivia Donnelly of Louth/ Meath Properties suggesting that her company might be able to act on his behalf and secure a tenant for him. As he had to travel 45 miles each time to arrange viewings of the house, he decided to hand the house over to Ms Donnelly
- Ms Donnelly told him that she had a number of potential clients on a list and that she could get rent of up to €185 per week for the house, of which she would retain 10% as commission. Mr Duff was happy with this financial arrangement
- It was also agreed that, having taken possession of the house, the lease would not be signed for a few weeks until such time as Ms Donnelly had obtained references in regard to the tenants and had satisfied herself that they would look after the house. Ms Donnelly also told him that she would monitor the house on a week to week basis. Mr Duff assumed that it would be him that would be signing the lease
- A few days later, Ms Donnelly phoned Mr Duff to tell him that a lady, who was originally from Dundalk, would be moving into the house with her two children. She also mentioned to him that they would require a washing machine
- Mr Duff arranged for the washing machine to be delivered on the day the new tenants were due to move in, 16 May 2003.
- When he went to the house on 16 May to meet the washing machine delivery man, he noticed a gentleman unpacking property from a car. He assumed that he was helping the woman to move in. At no time was he given any indication that the man was intending to live in the house
- The man ( now known to be Charles McDonagh) was not identified to him at the time. The man asked Mr Duff if there was a phone in the house (there wasn't) and also watched as Mr Duff tested the new washing machine.
- Over the coming weeks, Mr Duff's wife got a number of calls from neighbours complaining about the new tenants. These complaints concerned a dog fouling neighbours gardens, children spitting, using bad language and annoying other children. There were also reports of strange vans arriving and heated exchanges taking place in the street between the occupants of the vans and the tenants
- Mr Duff said that he also got an anonymous phonecall around that time complaining about the conduct of the tenants and threatening that his house "would be broken up" if he did not ask them to leave
- As he was not happy about the complaints, Mr Duff referred the matter to Ms Donnelly and asked her to resolve it. Mr Duff did not give Ms Donnelly any specific instructions as to how to deal with the matter
- Mr Duff recalls getting a call from a local councilor subsequently on Mr McDonagh's behalf. He informed the councilor that the matter was in the hands of the letting agency and that he had nothing to say to him
- On foot of the complaints, Mr Duff visited Louth/ Meath Properties to see who had signed the lease agreement. Ms Donnelly was not there but a member of staff gave him a copy. It showed Teresa Kerrigan as the tenant and he as the landlord. The agreement bore Ms Kerrigan's signature but Louth Meath Properties had signed on his behalf. Charles McDonagh's name did not appear on the agreement he was shown
- In June 2003, Mr Duff said that his son got a job with a major firm and was informed that he would be based in Dundalk from early July 2003. In light of this, Mr Duff thought it best to let his son live in Willowdale rather than to live in a B&B in Dundalk
- In mid June, Mr Duff informed Ms Donnelly that he needed possession of the house for his son and asked to arrange for the house to be vacated. She told him that she would have to give 4 weeks notice. The house was vacated on 12 July 2003.
- When Mr Duff went to inspect the house in July, after it had been vacated, he discovered that an amount of damage had been done to the interior. The fireplace had been broken and needed to be replaced. The new bathroom windows had been damaged by cigarette burns. A mirror had been broken and a wardrobe smashed. In addition, the cork floor in the kitchen and the concrete underneath had a large gash in it as if it had been hit very hard with a very heavy instrument. The overall cost of repairs came to €1000 - some of the bills were produced at the Hearing.
Mr Duff had not been informed of any of this damage by Ms Donnelly prior to 12 July 2003.
- In the months that followed, Mr Duff received two telephone bills from Eircom addressed to 58 Willowdale. The first, in the name of the wife's brother, was for €1011 and the second, in the name of Charles McDonagh, was for €998. Prior to 12 July 2003, Mr Duff was unaware that a phone had been installed in his house.
- At the Hearing, Mr McDonagh explained that the bill in his name was for a previous address that his family had lived in. Mr McDonagh also undertook to look after the two bills if they were passed to his solicitor
- Mr Duff's son moved into the house in August 2003 but only stayed there for short periods from then on. Mr Duff found a student to rent one of the rooms in September 2003 but she moved out soon after
Evidence of Respondent's son, David Duff
- Mr Duff finished college in May 2003.
- He had an interview with a company he had previously worked with in June 2003. He believed that the interview was a formality as the company already knew him from before.
- At the beginning of July, he received official confirmation that he was to start work on 4 July 2003 in Dundalk.
- During July and August 2003, he either lived at home, in a B&B in Dundalk or in Willowdale. He does not live full time in Willowdale
Evidence of Ms Olivia Donnelly
- Ms Donnelly was operating Louth Meath Properties for 3 years prior to 2003. In 2001, she leased accommodation to Ms Kerrigan's sister in Dundalk.
- In the 18 months prior to May 2003, she had set the McDonagh family up in 3 different houses in Dundalk which for one reason or another did not prove suitable for them
- When she saw Eugene Duff's advert in a local paper, she rang him to see if he would let her handle the property. She explained to him that she always validates potential clients first and only has agreements signed when she has checked references and seen how the tenants look after the property in the first few weeks of tenancy.
- When she came to considering the McDonaghs for the property, she decided that the above checks were not necessary as they had been clients of hers for some time
- Mr and Mrs McDonagh decided to take the property on viewing it. However, the couple then split up briefly and it was her understanding that only Mrs McDonagh would be moving in with her children and this is what she told Mr Duff when she called him to say that the house was being let.
- The company normally retain 3 copies of the lease agreement signed by the parties. Mrs McDonagh signed one of them on 16 May 2003 in her maiden name. Charles McDonagh signed a separate copy himself some time later when the couple got back together. His signature was required to ensure that rent allowance was paid by the Government, she said.
- Ms Donnelly's company has a policy of non-discrimination. For this reason, she gave no indication to Mr Duff that a Traveller family was moving into his house
- Ms Donnelly accepts that there was a discrepancy in the copies of lease agreements kept and that the agreement with Charles McDonaghs name identifies the tenant as K Kerrigan (the wife's sister) instead of his wife Teresa
- She recalls Mr McDonagh informing her that the fireplace had been damaged. She did not, however, report this to Mr Duff.
- Mr Duff contacted her after a number of weeks to complain that his wife had received several calls from neighbours in Willowdale about the conduct of the tenants. He asked her to deal with the matter.
- She personally visited Willowdale and spoke to many of the neighbours. She said that it was only the immediate next door neighbour who had a specific problem with the tenants. Ms Donnelly said that she personally cleaned up after the dog on two occasions.
- She said that she was surprised when Mr Duff told her he wanted the tenants to leave as she had told him that it was the company's practice to lease a property on a one year basis. She recalls him referring to his son needing the house but could not understand why he had not been aware of this possibility a few weeks beforehand. She also recalls him saying that he had received a threat that the house would be "broke up"
- Around the middle of June, she gave notice to Charles McDonagh. The McDonagh family vacated the premises on 12 July 2003 at which point they moved into another house she had found for them.
- Because of the heated discussion she had had with Mr Duff over the vacating of the house, she did not visit the house again after that.
- Overall, she considered it "unfair" the way the family were put out. She said that she personally did not think that the trouble reported was sufficient to warrant giving someone a months notice
- At the Hearing, she said that she thought that it had been "illegal" to put the McDonaghs out and that she "knew what went on" and that the son was only an excuse
6. Matters for Consideration
6.1 Section 3(1) of the Equal Status Act 2000 states that discrimination shall be taken to occur where, on any of the grounds specified in the Act, a person is treated less favourably than another person is, has been or would be treated. Section 3(2)(b) of the Act specifies the marital status ground, Section 3(2)(c) specifies the family status ground and Section 3(2)(i) specifies the Traveller community ground as one of the grounds covered by the Act,. Under Section 5(1) of the Act it is unlawful to discriminate against an individual in the provision of a service which is generally available to the public.
In this particular instance, the complainant claims that he was discriminated against on the grounds of his marital status, his family status and his membership of the Traveller community contrary to Sections 3(1), 3(2)(b), 3(2)(c) and 3(2)(i) and 5(1) of the Equal Status Act, 2000 in the treatment he received in being asked to vacate the property at 58 Willowdale, Dundalk.
6.2 In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.
7 Conclusions of the Equality Officer
7.1 Prima facie case
At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant.
There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Existence of a discriminatory ground (e.g. the Traveller community ground)
(b) Establishment of facts to show that specific treatment occurred
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground.
7.2 With regard to (a) above, the complainant have satisfied me that he is married, has a family and is a member of the Traveller community. In relation to (b), the respondent acknowledges that the complainant was asked to vacate the property within weeks of his family moving in. To determine whether a prima facie case exists, I must, therefore, consider whether the treatment afforded the complainant was less favourable than the treatment a person not covered by the above grounds would have received, in similar circumstances.
7.3 Key Points and Factors
From the evidence before me, the following appear to be the primary facts of the case:
- Mr Duff was led to believe that a mother and her children were moving into his property.
- Mr Duff had been given no indication that the tenants were Travellers nor that there would be any men in the house
- It would appear that Mr Duff only learned the above facts after the house had been occupied
- Shortly after the house was occupied, Mr Duff began to receive complaints about the tenants from neighbours. Mr Duff asked the property agency to deal with the matter but the complaints continued.
- Around that time, Mr Duff also received an "unwelcome" call from a local representative, acting on Mr McDonagh's behalf. In addition, Mr Duff received an anonymous threatening call advising that his house would be "broken up" if the tenants were not asked to leave
- There would appear to have been three different versions of the lease in existence yet Mr Duff never signed any of them
- In June, Mr Duff decided he wanted to repossess the house. The reason given was that his son was starting work in Dundalk and would be living in the house.
7.4 In considering whether discrimination occurred in this instance, I must decide, on the balance of probabilities, whether I consider it was the complainant's membership of the Traveller community, his marital status or family status that prompted Mr Duff to seek the family's eviction or whether there were other sound reasons for Mr Duff wanting vacant possession of his house.
In his defense, Mr Duff has said that he wanted vacant possession because of the neighbours' complaints, the lack of information given by the property agent about the tenants, the manner in which the lease was handled, the unwelcome phonecalls and his son's need for a place to stay.
In regard to the latter reason, I have noted the following. Mr Duff's son has stated that he previously worked in Dundalk in 2002 for the same employer with whom he was hoping to get a job in 2003. David Duff has also said that, while he still had to undergo the formality of an interview, that he knew in June that he would be getting the job and it was only the start date and work location that needed to be confirmed. It would appear, however that these were only confirmed in early July. For his part, Eugene Duff has stated that he gave notice in mid June that he wanted possession of the house on the basis that his son would be working in Dundalk.
7.5 In considering the above explanation for wanting possession of the house, I find that I have a difficulty in fully accepting it. Firstly, because of the inconsistency in the evidence given by the father and son and the fact that David Duff has admitted that he only stayed in Willowdale for brief periods after it was vacated and did not use the house on a regular basis.
7.6 The other reasons do, however, appear more credible and genuine. The evidence before me would appear to support the view that:
- The letting agent had not given Mr Duff accurate information as to who the tenants would be
- The lease was signed on Mr Duff's behalf without his knowledge and without first getting acceptable references for the tenants, as was promised
- Mr Duff was getting persistent complaints from neighbours about the conduct of the tenants
- Several phonecalls were made to Mr Duff which he considered unwelcome and somewhat threatening
7.7 Of interest here is the fact that Mr Duff has provided evidence that he has willingly rented his property to Travellers in the past and on those occasions was not subjected to any complaints from his neighbours. This would appear to indicate that, in the past, the neighbours had no difficulty with Travellers residing in the house if they were of good behaviour.
What appears to have happened in this case, however, is that the neighbours were unhappy with the conduct of the tenants and complained to Mr Duff. This would indicate to me that the discontent arose not from the fact that the family were Travellers but from their general behaviour.
On the basis of the above, I consider that Mr Duff had sufficient reasons and concerns to justify him wanting vacant possession of his house, irrespective of the background of the tenants. I, therefore, do not consider that the complainant's membership of the Traveller community was the primary motivation for Mr Duff's decision. Likewise, I do not consider that the complainant's marital or family status were motivating factors either.
7.8 In reaching my decision, I have also taken cognisance of the fact that Mr Duff himself does not appear to have a negative attitude towards Travellers - he has willingly rented his property to members of the Traveller community before. In addition, the evidence also shows that his initial response to the neighbour's complaints was not to seek immediate possession of the property but, instead, to refer the matter to Ms Donnelly to try and have it resolved. It was only when this was unsuccessful that Mr Duff decided that he wanted the family out of his house.
Accordingly, I find that a prima facie case of discrimination has not been established.
8.1 I find that a prima facie case of discrimination has not been established by the complainant on the Traveller community ground, the marital status ground or the family status ground under the provisions of the Equal Status Act 2000.
4 February 2005