A landlord who asked his pregnant tenant to change apartments because he had "genuine health and safety concerns" about her current flat has successfully defended a discrimination claim.
In dismissing the complaint, the Workplace Relations Commission said it would disregard the contents of a secret recording made of a meeting with the landlord by the tenant, who had also said that her stress levels meant her child had to be delivered by caesarean section.
Chartered surveyor Brendan O'Brien had denied Megan Kenna's complaint under the Equal Status Act 2000, in which she alleged her family's tenancy at an apartment in Howth, Co Dublin, was terminated because of her gender and family status, along with harassment on the same grounds.
Ms Kenna told the WRC that she and her husband, Waina Landauro, felt they were "bullied and threatened" by Mr O'Brien. She said she had feared losing the pregnancy because of the stress - putting medical evidence before the tribunal that the baby had to be delivered by caesarean section due to stress.
The landlord's solicitor fully accepted the medical opinion on the caesarean procedure, but disputed any action by him was the cause.
"I'm not a villain," Mr O'Brien told the tribunal.
The tribunal heard Mr O'Brien called in on the couple by arrangement on 9 April 2022 and, citing health and safety concerns about a spiral staircase used to access the apartment, told Ms Kenna and her husband: "I can't allow a child in this apartment."
In Ms Kenna's recording of the meeting, which was played in full to a WRC hearing in July this year, Mr O’Brien was heard to say he had signed a contract with two people and that to allow a third person in would be a breach of the lease agreement.
"It's a health and safety issue for me. I can't allow it. That's the bad news. The good news is that I have [another] apartment," he said.
When Ms Kenna challenged him on this point and raised the prospect of discrimination, Mr O’Brien replied: "I don't argue. I'm the landlord. This is my property. You signed a contract. This is not an argument."
The landlord's solicitor, Colm Hickey, said a transcript produced by the complainant side was not an accurate record of the conversation as it had omitted a section at a point when Mr O'Brien was occupied talking to a third party and Ms Kenna and Mr Landauro were briefly "behind closed doors".
"I wasn’t expecting that aggression," Ms Kenna during this period.
"I told you he was going to declare war," Mr Landauro replied.
"I got it all on tape," Ms Kenna then said.
Mr Hickey highlighted that his client had been recorded stating: "I’m not trying to push you out the door" on the tape.
"Ms Kenna you're a highly qualified professional. Is it your habit to record people?" he asked the complainant.
"No it's not," she said.
"You and your husband said things about declaring war and aggression. They're strong words," counsel said.
"That's how I would describe the situation with Brendan O'Brien in my apartment that morning," Ms Kenna said.
In his evidence, Mr O'Brien told the tribunal: "The issue with the staircase - it's 47 steps - if I was to get a buggy up those steps or a moses basket - I wouldn't sleep at night with a baby in it," he said.
"I didn't realise I was being illicitly recorded. I offered you the apartment next door, anything that came up I could get my hands on to give you. I don’t know where this turned, but to some extent, entrapment gets involved in my mind. Maybe that's strong, but I don't know," Mr O’Brien later said.
Ms Kenna said proposals for alternative accommodation put to her by Mr O'Brien - a two-bed apartment for between €2,000 and €2,100 a month or a one-bed at €1,650 on a month-to-month licensee arrangement- were unsuitable.
The tribunal heard a further recording of the couple going to see the one-bed property with Mr O’Brien on the same day.
"What was wrong with the other apartment?" asked adjudicating officer Andrew Heavey.
"The other apartment was filthy - grime and grease - and it was very gross - I wouldn’t choose it," she said.
Michael Kinsley BL, appearing for the complainant instructed by Daly Khurshid Solicitors, put it to the landlord: "What you were out to protect was yourself," quoting from the transcript of that meeting: "I’m a wealthy man and I’m not going to have anyone come and take the building off me."
"I’m glad we’re in this forum and not down in the coroner’s court," Mr O’Brien replied.
Mr Kinsley said his client's position was that she would have no difficulty with the stairs.
He also opened correspondence from a consultant obstetrician at the Rotunda hospital stating that due to stress levels during Ms Kenna's pregnancy, the child had to be delivered by caesarean section.
"I was thinking about losing the pregnancy because of the stress - that is what is at stake here," Ms Kenna said.
"I'm really sorry for crying but I have to bring up my baby. Thankfully nothing bad happened here because of the situation Mr O'Brien created for me - being told I have to leave, feeling bullied and pressured by him," she concluded.
Adjudicator Andrew Heavey wrote in his decision that the "covert" recording was made "without the respondent's knowledge or permission" - noting a submission by Mr O'Brien that he would be "addressing that matter in a different forum".
He considered Ms Kenna's statement in evidence that she thought the meeting with Mr O'Brien would be a "positive visit" was "hard to believe" because she had intended to record it "covertly".
Mr Heavey also said he "noted" the comments of Ms Kenna and her husband on the tape while Mr O'Brien was briefly out of earshot during his visit, when Mr Landauro said the landlord had declared "war" and Ms Kenna said she "got it all on tape".
"Given the circumstances surrounding the recording and the conversations that took place, I have disregarded everything that was said during that interaction between the parties," Mr Heavey wrote.
Mr Heavey noted that in email correspondence, Mr O'Brien had offered "a number of options" for alternative accommodation and "reiterated a number of times to the complainant that he was not evicting her and her husband".
Mr O'Brien had informed the tenants that he "wanted to help them and that he would do his best to accommodate [Ms Kenna] and for her not to worry about anything as there was plenty of time to sort things out".
His view was that the respondent's evidence was "honest and sincere and in line with the sentiments" set out in emails between the parties.
Mr Heavey wrote that the situation was brought about by "genuine health and safety concerns" on the part of Mr O'Brien and that a "mere suggestion of changing apartments" did not amount to discrimination.
He rejected Ms Kenna's statutory complaint.
