Complaint under the Equal Status Act 2000
DEC - S2007 - 010
Mr. Robert Cantwell
Giles & Co., Tralee
(Represented by Gerald Baily & Co., Solicitors)
Mr. Cantwell referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. The claim was of discriminatory treatment and harassment on the disability ground and victimisation. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, 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.
Summary of the Complainant's case
By the time of the alleged incident on 6th September 2002 the complainant, who is disabled, had rented accommodation through the respondent's agency for some time. He had been entirely happy with arrangements until a new contact person, Ms. Bayfield, took over in March 2001. He was generally unhappy with his interactions with her relating to repairs to the washing machine, requests to be moved to another apartment, and requests for some painting, carpets and blinds. The washing machine repairs were unduly delayed in his opinion. Apparently there was a substantial delay waiting for parts. He was asked to get quotes for the other work and was under the impression he had been given the go-ahead for the work as he was told that the rent would go up to take account of these improvements. He was never paid for the pots he bought himself and the blinds were never paid for at all. The company who supplied them removed them from the apartment when he left. The Agency requested a visit to the apartment to view the work done. This was arranged for 9am. Ms. Bayfield failed to appear. Mr. Cantwell explained how it was difficult for him to get up that early but that he had been ready and waiting for her. He complained to a Mr. Carmody in the respondent company. He subsequently met Ms. Bayfield on the street outside her office on Friday 6th September 2002. He felt that she was very angry. He thought it was because he had reported his dissatisfaction with her. She told him that she had sent someone else for the inspection. Mr. Cantwell disputed this and felt that the staff were covering for each other. He did not go into the office which has a number of steps at the entrance. Mr. Cantwell alleges that Ms. Bayfield called him a stupid useless cripple and told him to grow up. He put this in a letter to Mr. Trevor Giles over the weekend and hand delivered it. He received no response. On 10th September 2002 Mr. Cantwell notified the respondent of his intention to complain to the Tribunal failing an acceptable response. The company responded with a letter from their representative dated 12th September 2002 informing the complainant "...that should you continue to make these allegations that our client will be left with no alternative whatsoever but to consider Defamation proceedings..." On 10th March 2003 Mr. Cantwell went to the offices of the respondent's representative, Gerald Baily and Co., Solicitors. He went there to withdraw his complaint against the respondent and signed a document to that effect. He wrote to the Tribunal on 8th October 2003 stating that he was now in a position to pursue the complaint and asked the Tribunal to continue with the investigation.
Summary of the Respondent's Case
Ms. Bayfield for Giles & Company stated that she was not aware that there was any difficulty with the working relationship she had with the complainant. She stated that both Mr. Cantwell's complaints about the washing machine were dealt with within 4 days. She alleges that Mr. Cantwell only got one quote for the carpet which was too expensive and he should not have ordered it. There was some discussion about a rent increase. In respect of the incident on 6th September 2002, she agrees that she met the complainant on the street. She stated that the conversation was quite civil but that he did not believe her that someone else had been sent. The complainant would not go into the office to talk so she brought her colleague out to speak to the complainant who was not satisfied. She stated that she would never use those words as alleged. She does not think he is any of those things, and they are not words she would ordinarily use. In addition she would not tell someone her senior to grow up. She gave him preferential treatment when his signature was required on the renewal of his lease by taking the documents to his apartment as she did for another disabled client. Mr. Giles stated that the company does not look at disability as an issue when looking for a tenant, the issue is an ability to pay the rent. They try to facilitate everyone. When a disabled tenant informs them that something is not in working order, they are treated like everyone else. The respondent argued that since the complainant signed a document withdrawing his complaint in their representative's office, which they subsequently sent to the Tribunal, the matter was at an end.
When asked at the hearing about the response made to the complainant's notification, with particular regard to Section 26 of the Equal Status Act, 2000, the respondent stated that they believe that their response was entirely appropriate.
The respondent's representative confirmed in correspondence after the hearing that the respondent could not locate the receipt relating to the reimbursement of the complainant for the purchase of the pots and pans.
Conclusions of the Equality Officer
Preliminary Matter - Jurisdiction
The Equal Status Act, 2000 states that the Director "shall investigate" every complaint referred to her and at the conclusion of an investigation "the Director shall make a decision". Section 25 creates a statutory duty to do so.
The complainant stated in evidence that on 10th March 2003 he wanted to remove the potential for eviction created by his complaint to the Tribunal. He signed the agreement without receiving any promise of improved treatment or payment. Therefore there was no consideration included in the withdrawal process or document. Even if there was a consideration this would not be a matter for the Tribunal. It would be a contractual matter between the parties.
The complainant has claimed duress and this appears to stem from his fear that his lease would be terminated and he would be evicted because he had complained about Ms. Bayfield. He stated this fear in evidence at the hearing. While there is no evidence that this would in fact have been considered by the respondent it seems to have been a real fear on the part of the complainant. In addition on 21st October 2002 the complainant, having been informed of the backlog of investigations in the Tribunal, wrote to the Tribunal requesting priority for his case. In support of this he stated "....My landlords Giles Auctioneers are the people I am complaining about, namely Fiona Bayfield. As a disabled person I feel very vulnerable and I feel I could be subjected to "dirty tricks". When they realise this is not progressing I could feel their wrath. Please consider my views and please prioritise my complaint."
It was clear from his evidence in respect of the substantive claim that the complainant considered that he could no longer interact with Ms. Bayfield and felt he was being stone-walled by the individual he was dealing with in the respondent company. Clearly he felt that his relationship with the company was at a very low ebb. It is not unreasonable to accept that he felt exposed with respect to a possible retaliation from the company even though such a step may never in fact have been considered by the company. That being said, his concern must be seen in light of the company's immediate and emphatic response to his notification. In issuing the notification Mr. Cantwell was exercising a statutory right. Their response was to ask him to withdraw the allegations or face defamation proceedings. Therefore the complainant knew that the respondent would take stern action if they considered it appropriate. It is clear that Mr. Cantwell was afraid of losing his home.
The respondent's representative, who prepared the withdrawal document for the complainant to sign, stated that it was suggested to the complainant that he should get independent legal advice on the matter. The complainant denies this. However, during his evidence the complainant made it clear that he went to that office with the intention of withdrawing the complaint in the hope that the respondent would treat him better and to remove any possibility of unfavourable treatment based on his complaint. While the complainant denies the mention of independent legal advice there is no allegation of duress or persuasion on the day. The duress described relates to his perception of the possibility of retaliation on the part of the company. The respondent's representative wrote to the complainant on 11th March 2003 enclosing a certified copy of the agreement he had signed the previous day. The letter mentions that he had been offered the opportunity to take independent legal advice on the matter and declined. For obvious reasons it would have been inappropriate for the respondent's representative to provide advice. It is clear that Mr. Cantwell signed the agreement without legal advice regarding the implications and regardless of the protection afforded to him by the Equal Status Act, 2000. It is understandable that he may not have had a high regard for this protection given the respondent's response to his notification. I am satisfied that Mr. Cantwell was not in receipt of clear legal advice in respect of his situation. I am satisfied, on the basis of the evidence presented to me, that Mr. Cantwell was under duress when he signed the agreement in so far as he wanted to secure his accommodation. I am also satisfied that when that duress was removed, i.e. when he secured alternative accommodation, he indicated his intention to continue with the claim.
This Office did not respond to the respondent's correspondence which included the withdrawal and did not in fact close the file. Thus the matter of unfairness to the respondent does not arise since they were never told by the Tribunal that the agreement submitted meant that the case was closed.
I am further satisfied that the Tribunal did not receive a withdrawal of the complaint from Mr. Cantwell. While he signed the document, it was the respondent's representative who wrote to the Tribunal requesting a withdrawal of the complaint and appended the agreement. The next time the Tribunal heard from the complainant was a request for the matter to go ahead.
The Tribunal must be satisfied that a complaint is validly withdrawn by the complainant. Since a withdrawal was never received from the complainant and since the Tribunal did not verify the status of the agreement submitted by the respondent, and taking account the duress described by the complainant, I find that the Tribunal still has jurisdiction to investigate the case.
The complainant has alleged discriminatory treatment and harassment on the disability ground. He has also alleged victimisation which is a ground in its own right in Section 3 of the Equal Status Act, 2000. These grounds were notified to the respondent in the notification issued by the complainant on 10th September 2002 in accordance with Section 21 of the Equal Status Act, 2000 and in the complaint form copied to the respondent's representative on 19th September 2002 by the Tribunal.
There is a history of interaction between the complainant and Giles and Company. In addition, the respondent accepts that the complainant is disabled. What is therefore to be decided is
- Whether or not the complainant was less favourably treated,
- Whether or not such less favourable treatment was because of his disability,
- Whether or not he was provided with assistance necessary to allow him to use the company's services without undue difficulty, and
- Whether he was victimised in terms of the Act.
The respondent's response to the complainant's notification was to threaten defamation proceedings. I find that such a response is not a reply to the complainants as detailed in Section 26(a) and that it would not assist the complainant in deciding whether to refer a complaint as detailed in Section 26(c). Therefore in accordance with Section 26 I am empowered to draw such inferences, if any, as seem appropriate.
Discriminatory Treatment and Harassment
Based on the information given to me their interactions in general were not entirely happy. Certainly there was a lack of clarity in their communications given the difficulties surrounding the purchase of items for the apartment and its redecoration. I find it difficult to accept Ms. Bayfield's contention that she was unaware of any difficulties in her working relationship with the complainant. However, no evidence was presented to indicate how Ms. Bayfield interacted with her other clients. In addition, it is clear from the evidence presented to me that Mr. Cantwell had a very good working relationship with Ms. Bayfield's predecessor. The fact that this relationship changed when she took over may have been problematic.
The complainant stated that he only became aware of his disability as an issue when Ms. Bayfield allegedly called him a stupid useless cripple. He stated that the reason for the earlier unsatisfactory behavior became clear only in terms of that comment. Ms. Bayfield denies that any such comment was made. As I have said I do not accept that Ms. Bayfield was unaware of difficulties with relationship. Whether or not the comment was actually made appears to be one person's word against another's. What is noteworthy is that the complainant wrote to the respondent company the following day detailing the comment and asking that any of his future dealings with the company be with a different individual. The respondent did not respond. I find the complainant's version of events more compelling and I am satisfied on the balance of probabilities that the comment was made. In my view it is also be appropriate to draw an inference on this matter on the basis of the letter issued by the complainant on the day after the incident, and which was undisputed by the respondent, that the comment was made. I find that the complainant has established a prima facie case of discrimination which, based on the evidence presented, the respondent has failed to rebut.
Section 4 - special treatment or facilities
Section 4 of the Equal Status Act 2000 deals with the provision of special treatment or facilities while providing a service for those suffering from disabilities. The respondent was clear that in all respects the complainant was treated in the same way as other clients. The one exception was in relation to the renewal of the complainant's lease. When the complainant called to indicate some problem with the apartment, and/or its fixtures and fittings, those calls were logged and handled in exactly the same manner as the calls from all other clients. No consideration was given as to whether or not the issue arising would cause particular difficulties for the complainant given his disability. Neither are there any arrangements in place where any priority is given to calls from clients who indicate they have a disability and for whom the problem reported may cause particular difficulties. I am satisfied that part of the service being offered by the respondent was the maintenance of the apartment and its contents. I am also satisfied that a broken washing machine would create more difficulties for a disabled person than for a person without disabilities. I accept that both of the complainant's calls about the washing machine were addressed within four days. However, since some parts were required, addressing the complaint within four days did not fix the problem. I find that the respondent did not do all that is reasonable to accommodate the complainant's needs and that without that treatment undue difficulties arose for him.
The respondent's representative's letter of 11th March 2003 also states "We are now treating the matter at an end, but we have written to Ger Carmody of Giles & Company to make contact with you in the hope that you might be in a position to find alternative accommodation to your liking, although this is not a precondition of the withdrawal of the Complaint, as you are aware." No action was taken by the respondent company on foot of this suggestion from their legal representative relating to alternative accommodation.
Victimisation has a very specific definition in relation to the Equal Status Act 2000 and this is included in Section 3(2)(j) and is listed below for ease of reference.
(j) that one --
(i) has in good faith applied for any determination or
redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the
Director or a court in connection with any inquiry or
proceedings under this Act,
(iii) has given evidence in any criminal proceedings under
(iv) has opposed by lawful means an act which is unlawful
under this Act, or
(v) has given notice of an intention to take any of the
actions specified in subparagraphs (i) to (iv),
and the other has not (the ''victimisation ground'').
I am satisfied that in sending the notification to the respondent as required under Section 21 of the Equal Status Act 2000 in advance of any complaint being made to the Tribunal, the complainant was giving notice of his intention to apply for a determination should they not provide the requested information in accordance with subsections (v) and (i) of Section 3(2)(j) above. The respondent's response was to threaten legal proceedings. This is without doubt less favourable treatment and it was a direct response to his notification. I am satisfied that the respondent victimised the complainant in terms of Section 3(2)(j) of the Equal Status Act 2000. I find that the complainant has established a prima facie case of discrimination on the victimisation ground. The respondent stated that their response to the complainant was considered appropriate. No evidence was presented to rebut the prima facie case of discrimination on the victimisation ground.
I find that the respondent discriminated against the complainant in terms of Sections 3(1)(a), 3(2)(g) and 5(1) and in terms of Section 4, all of which relate to his disability. I also find that the complainant was discriminated against in terms of Section 3(1)(a), 3(2)(j) when he was victimised. Equality Officers have normally taken a very serious approach to victimisation in terms of the Equality Acts since such victimisation is a direct attempt to interfere with a person's pursuance of their statutory rights.
I hereby order the respondent
- To pay the complainant €2000 for the effects of the discrimination related to his disability.
- To pay the complainant €4000 for the effects of the discrimination related to the victimisation.
- To implement a system which can afford reasonable accommodation to disabled clients in terms of Section 4 of the Equal Status Act 2000.
7th February 2007