Equal Status Acts, 2000 to 2008
Equality Officer Decision
Mr John Murphy
File Ref: ES/2008/228
Date of Issue: 13 August 2010
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(f), age ground -prima facie case - discrimination
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 23 December 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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 Acts, 2000-2008. On 27th April 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on August 11th, 2010 and both parties were in attendance.
This dispute concerns a claim by the complainant, Mr Murphy that he was discriminated against by the respondent on the grounds of age in terms of Sections 3(2)(f) of the Equal Status Acts, 2000-2008 when they refused to allow him to rent a property which was on their books.
2. Summary of the Complainant's Case
2.1 The complainant alleges that because he is an old age pensioner, he has been discriminated against by the respondent. In August 2008, the complainant was interested in renting a house in Meath and so he visited a property which was being offered for rent by the respondent. He decided to take it and he signed an agreement with Champion Lettings. He gave a holding deposit and followed this up shortly afterwards with several other documents to support his status as an excellent and reliable prospective tenant. Over the next couple of weeks he exchanged emails with Ms A, an employee of the respondent. These emails related to details about the property, such as the switching the phone line, the TV cable and other issues.
2.2 Immediately before he was due to move into the house, Mr Murphy received a call from Ms A to say that the landlord was not prepared to rent the house to an old age pensioner and so the arrangement was off. He was extremely shocked and disappointed and asked for his deposit and documents to be returned. Mr Murphy had already made all the arrangements for the move by this stage, including engaging (and paying a deposit to) a removal company, terminating his existing tenancy, packing all his belongings and changing his phone and broadband accounts. Therefore this abrupt change of plan caused him financial loss as well as considerable emotional stress and upset.
2.3 Mr Murphy believes that the respondent operate in a badly organised and ageist manner. He was also annoyed by the fact that they did not work with him to find another property suitable to his needs. He feels that he was very badly treated by them and he has taken this case to ensure that no-one else should suffer the same treatment.
3. Summary of the Respondent's Case
3.1 In July 2008 the respondent was asked by Sherry Fitzgerald to advertise a property to let in the Duleek area. The reason was that the sale of this house had fallen through and the owner decided to rent it out instead. The respondent put the property on its books and advertised it for rent around late July 2008. The complainant was interested in the house, viewed it on 11th and 13th August and decided to take it.
3.2 The process for rental properties is that once an interested party decides to take it, they are asked for a holding deposit. They are given a receipt for the holding deposit and then the property is not advertised further. Then they ask for references, bank statements and all the supporting documentation. Once this process is complete, a signing/moving-in day is agreed. On the signing/moving-in date, the parties sign an agreement and the first month's rent is taken.
3.3 In the present case, the respondent states that they went through all the initial steps, but they never got as far as signing the agreement, because the landlord withdrew the property beforehand. The respondent stated that landlords often change their minds, that this is legal and there is absolutely nothing they can do about it. In these cases, they apologise to the prospective tenant and return their deposit. This is what happened in this case.
3.4 The respondent agrees that they did not answer the letter of complaint sent by Mr Murphy. They say this is because he sent it to the wrong office and because they were annoyed about his allegations and his subsequent behaviour when he visited their office.
Witness for the Respondent - Ms A, Employee
3.5 Ms A is an employee of the respondent and was responsible for showing potential properties to Mr Murphy. Ms A showed the house in question to the complainant on August 11th and 13th. When he decided that he wished to rent the house, Ms A took a holding deposit from him and communicated with him regarding the arrangements over the next couple of weeks. Mr Murphy sent emails to her regarding his new phone line in the house and the arrangements with the TV cable company. Ms A answered Mr Murphy's questions by communicating with the landlord first and sending the responses to the complainant. Ms A also completed a PRTB form on behalf of the landlord and agreed to change the ESB accounts herself in order to assist both parties. Ms A believes that she agreed a moving-in date on or about 26th August with the complainant. This was to be the date he would pay the first month's rent and sign the contract.
3.6 On August 25th, the landlord contacted Ms A and told her he was not interested in renting the property anymore. Ms A understood that his reasons for doing so were financial - ie: he really needed to sell the property because he had already built another house and needed the money. Ms A contacted the complainant and told him that the landlord had changed his mind about renting and had decided to sell the house instead. She is adamant that neither she nor the landlord ever mentioned his age or the fact that he was an OAP. She explained to the complainant that the decision to sell was out of her control. She says that she apologised to him and offered to keep looking for properties to match his requirements. At the time she had no other properties in the area which matched his requirements, but she intended to keep searching. She pointed out that she was also disappointed the arrangement fell through because she was paid on commission and thus she received nothing for the work that she had done.
Witness for the respondent - Mr B, Landlord
3.7 In 2008 Mr B had a house for sale through Sherry Fitzgerald. However the market was volatile at the time and on two occasions, the potential sale of the house fell through. Therefore in July 2008, he decided that he needed to get some income from the house (which was lying empty) and so he decided to rent out the property. He advised Sherry Fitzgerald of his decision and, as their branch did not handle lettings, they put him in touch with Champion Lettings. About a month later he was advised by Sherry Fitzgerald that they had a strong potential buyer and so he decided to withdraw from the rental market and sell instead. He communicated this decision to Champion Lettings by phone on August 25th 2008. He did not know of any potential tenant for his house and he says that his wife may have discussed these arrangements with Ms A. He says that he could never have made reference to the age of the potential tenant, because he did not even know the tenant existed. The house was eventually sold about 6 months later and it was never rented out at any stage.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 In terms of basic facts both the complainant and the respondent agree that the complainant viewed the house in question, placed a holding deposit and was due to move in around August 26th 2008. The parties disagree with respect to the other facts, particularly the key issue of whether or not the respondent ever made a remark about the complainant's age. The complainant is adamant they did refer to his age; the respondent is equally certain that they did not. Therefore I have to look at the issue of credibility of the parties. During the hearing the complainant gave evidence that he had signed a contract with the respondent; however this turned out not to be the case upon closer examination. The complainant was also unable to be specific on many of the other details of the case. It is to be regretted that the complainant was unaware that the landlord had a right to withdraw from the arrangement at any stage. The fact that he believed the matter was fully settled served to increase his shock and disappointment. It also caused him financial loss, because he made all of his moving arrangements and paid deposits in good faith. All of this contributed to the complainant's understandable anger and upset, but they do not provide evidence that discrimination occurred.
4.3 The respondent gave an outline of the procedure involved in renting a house and it is clear that it was followed in this case; ie: that no contract was entered into because the landlord withdrew before that. It is also clear from the documents provided by Sherry Fitzgerald and from the evidence of the landlord, that the house was withdrawn from the market in order to sell it and not to offer it to another tenant. The respondent submitted a document which showed that they had deleted the house from their rental database shortly after August 25th. The respondent submitted to the Tribunal all the emails exchanged between Ms A and the complainant in order to show that they had put considerable effort into the arrangement. It is apparent that the respondent lost out here too, in that they had done the viewings, done the reference checks, completed all the paperwork, but they did not receive any commission because the house was returned to the selling agent at the last minute. The issue of poor customer service was raised by the complainant on several occasions; however it is clear that the relationship breakdown between the parties contributed to this. In any event the level of customer service provided to the complainant is not a matter for this Tribunal, unless it can be shown to be related to one of the protected grounds.
4.4 Considering all the evidence above, I find that the complainant brought this case in good faith and that he genuinely believed that he had been discriminated against by the respondent. However I find that all the evidence points to the matter unfolding exactly as described by the respondent. I found the respondent's employee Ms A to have been honest and credible throughout the oral hearing. Therefore I find that Ms A did not make the remark about OAP's which has been attributed to her by the complainant. I find that she advised him the rental had fallen through, purely a result of the landlord deciding to sell the property instead. I believe that the severe personal stress which the complainant was under at the time, may have led him inadvertently to misinterpret the respondent, when she told him the bad news.
5.1 On the basis of the foregoing, I find that the complainant has not raised a prima facie case of discrimination on the grounds of age and I therefore find in favour of the respondent.
13 August 2010