A Nigerian National V A Financial Institution
1. Dispute
This dispute concerns a complaint by Mr A that he was discriminated against and victimised, contrary to the Equal Status Act 2000, by a Financial Institution.
The complainant maintains that he was discriminated against on the race ground and victimised in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 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
The complainant, a Nigerian national, claims that he was discriminated against on the grounds of his nationality by the respondent over a period of time, in not being provided with standard banking facilities which are generally available to the public and that he was victimised when he complained to the CEO of the organisation.
3. Summary of Respondent's Case
The respondents reject that any discrimination or victimisation occurred. The respondents state that each individual application from the complainant was assessed in accordance with standard banking practices and that discrimination was not a factor in the refusal of facilities.
4. Delegation under the Equal Status Act, 2000
This complaint was 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 this complaint 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 Preliminary Issue
In January 2003, the Equality Tribunal received a formal complaint from Mr A on the race ground. In the complaint, he claimed that he had been both discriminated against and victimised by the Financial Institution on a number of occasions between June 2001 and August 2002. In reply, the respondents argued that all but the last incident complained of were “out of time” and called for a Preliminary Decision on this issue.
Having deliberated on this preliminary issue, I formed the opinion that the case before me, albeit under the Equal Status Act 2000, was very similar to a number of previous employment equality cases involving a “chain of incidents” where all the incidents referred to were closely related - in the case before me, the incidents all related to situations where the complainant sought to avail of standard banking facilities provided by the respondent but was refused.
Accordingly, I found that the “chain of incidents” referred to in this case was admissible under the Equal Status Act 2000 and that I had jurisdiction to investigate each of the incidents identified, in deciding whether discrimination and/or victimisation had occurred. A Preliminary Decision to this effect issued on 17 May 2004.
6 Matters for Consideration - Main Complaint
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)(h) of the Act specifies the race 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 race contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000 in the treatment he received in seeking financial services between June 2001 and August 2002.
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 race 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 in treatment and the discriminatory ground.
7.2 With regard to (a) above, the complainant has satisfied me that he is a Nigerian national. In relation to (b), the respondents have acknowledged that the complainant was refused a variety of banking facilities between June 2001 and August 2002. To determine whether a prima facie case exists, I must, therefore, consider whether there is evidence that the treatment afforded the complainant was less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances.
7.3 From my examination of the complaint details, I have identified six specific occasions between June 2001 and August 2002 which I consider require investigation. These are as follows:
- Incident 1 June 2001- Refusal of application for a Laser Card
- Incident 2 Nov 2001 - Refusal of a £1000 overdraft on Mr A's current account
- Incident 3 Jan 2002 - Mr A informed that his Visa Card application had been refused despite having received written approval and a PIN No the previous month. (On foot of this refusal, Mr A complained of discrimination in a letter to the CEO of the Financial Institution).
- Incident 4 Feb 2002 - Application for €12,700 Term Loan refused by Branch X
- Incident 5 May 2002 - Application for €13,000 Term Loan refused by Branch Y
- Incident 6 August 2002- At the request of Area Manager, application for €13,000 Term Loan reassessed by Ms B in Branch X . Application refused some days later.
7.4 Complainant’s Previous Financial History
From the evidence before me, it appears that the complainant’s relationship with the Financial Institution, prior to June 2001, was as follows:
In May 2000, Mr A opened a current account with the Financial Institution in Branch Y with a lodgement of £100. Mr A’s bank statements from that account from May 2000 to 5 June 2001 show a number of cash lodgements including one large cash lodgement of £3000 in December 2000. The statements also show two credit transfers from abroad of £3629 (22 Jan 2001) and £1440 (12 Feb 2001). The statements show a regular pattern of cash withdrawals in the period May 2000 to June 2001, mostly minor amounts with the largest being for £851. There was also one large withdrawal by draft for £3160 on 8 Jan 2001.
In March 2001, Mr A commenced employment with a community based organisation and arranged for his monthly salary to be paid directly into his account from April 2001. His bank statements show respective salary transfers of £1315 and £1147 in April and May 2001 from the community based organisation.
7.5 In the case of each of the six specific occasions referred to above, I have set out in the paragraphs below the basis of the complainant’s complaint and the respondents’ response to it. I have also, in each case, outlined my own thoughts and views on the incidents referred to and I have indicated, in each case, whether I consider discrimination occurred.
7.6 The Criminal Justice Act 1994 and the Equal Status Acts 2000-2004
Section 14 of the Equal Status Act states that nothing in that Act shall be construed as prohibiting the taking of any action that is required by or under any enactment.
In this case, the respondents argue that a number of their dealings with the complainant were required by their obligations under the Criminal Justice Act 1994 and, accordingly, these actions cannot be construed as discriminatory under the Equal Status Act. To facilitate further deliberation on this issue, I believe that it useful at this point to set out below the main provisions of the Criminal Justice Act 1994 in so far as they apply to this case.
The Criminal Justice Act 1994 - Measures to be taken to prevent money laundering.
Section 31 of the Criminal Justice Act 1994 introduced special provisions dealing with money laundering while Section 32 placed significant obligations on financial institutions in situations where money laundering or other criminal activity was suspected.
Section 31 of the Criminal Justice Act 1994 provides that
(1) A person shall be guilty of an offence if he—
( a ) conceals or disguises any property which is, or in whole or in part directly or indirectly represents, his proceeds of drug trafficking or other criminal activity, or
( b ) converts or transfers that property or removes it from the State,
for the purpose of avoiding prosecution for an offence or the making or enforcement in his case of a confiscation order.
(2) A person shall be guilty of an offence if, knowing or believing that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking or other criminal activity, he—
( a ) conceals or disguises that property, or
( b ) converts or transfers that property or removes it from the State,
for the purpose of assisting any person to avoid prosecution for an offence or the making or enforcement of a confiscation order.
(3) A person shall be guilty of an offence if he handles any property knowing or believing that such property is, or in whole or in part directly or indirectly represents, another person's proceeds of drug trafficking or other criminal activity.
Section 3 of the Criminal Justice Act 1994states that "property" includes money and all other property, real or personal, heritable or moveable, including choses in action and other intangible or incorporeal property;”
Section 32 of the Criminal Justice Act 1994specifically provides that financial institutions shall take reasonable measures to establish the identity of any person for whom it proposes to provide a service where it suspects that a service is connected with the commission of an offence under section 31 of this Act “in respect of transactions that, either as an individual transaction or a series of transactions which are or appear to be linked, amount in the aggregate to at least £10,000” .
Section 57 of the Criminal Justice Act 1994 provides that
(1) Any person to whom or which section 32 of this Act applies (including their directors, employees and officers) shall report to the Garda Síochána where they suspect that an offence under section 31 or 32 of this Act in relation to the business of that person or body has been or is being committed.
(2) A person charged by law with the supervision of a person or body to whom or which section 32 of this Act applies shall report to the Garda Síochána where he or it suspects that an offence under section 31 or 32 of this Act has been or is being committed by a person or body with whose supervision the first mentioned person or body is so charged.
(3) A report may be made to the Garda Síochána under this section in accordance with an internal reporting procedure established by an employer for the purpose of facilitating the operation of this section.
(4) In the case of a person who was in employment at the relevant time, it shall be a defence to a charge of committing an offence under this section that the person charged made a report of the type referred to in subsection (1) or (2) of this section, as the case may be, to another person in accordance with an internal reporting procedure established for the purpose specified in subsection (3) of this section.
(5) A person who fails to comply with subsection (1) or (2) of this section shall be guilty of an offence and shall be liable—
( a ) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or
( b ) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.
Section 58 of the Criminal Justice Act 1994provides that
“Where a report has been made under subsection (1) or (2) of section 57 of this Act, a person who, knowing or suspecting that such a report has been made, makes any disclosure which is likely to prejudice any investigation arising from the report into whether an offence has been committed under section 31 or 32 of this Act shall be guilty of an offence.
A person guilty of an offence under this section shall be liable—
( a ) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both, or
( b ) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years or to both.”
7.7 From the above, it is clear that the Criminal Justice Act 1994 places a heavy responsibility on financial institutions to investigate and report to the Gardai all cases involving transactions of a suspicious nature. It is also clear that financial institutions who fail to comply with the reporting procedure outlined in the Act or who make any disclosure which is likely to prejudice any subsequent Garda investigation leave themselves open to conviction of a criminal offence and to heavy penalties under the Act.
From my examination of the Criminal Justice Act 1994, I am satisfied that there was a requirement on the respondents in this case to report their suspicion of money-laundering and to maintain confidentiality in relation to their actions. For this reason, I consider that the respondent’s reporting of the suspected money-laundering incident and their subsequent non-disclosure of the report to the complainant are actions which are exempted by the provisions of Section 14 of the Equal Status Act and cannot be construed as constituting discrimination.
7.8 As stated above, it is clear that the Criminal Justice Act 1994 places a major emphasis on the need to maintain confidentiality in relation to the reporting and investigation of suspected cases of money laundering and that the Act provides for heavy penalties against those that disclose information relevant to such investigations.
With this in mind, I have given much thought to the evidence placed before me in the context of my investigation, much of which deals directly or indirectly with the allegation of money laundering made against the complainant. In view of the fact that the subsequent Garda investigation failed to determine any wrongdoing on the complainant’s part, I consider that it would be inappropriate of me to publicly identify the complainant as someone who was recently associated with an allegation of money laundering.
Accordingly, I consider that the most appropriate line to take is for me to anonymise the identity of the complainant in the text of my Decision and, in the interest of fair procedures, I also consider that it is incumbent on me to also anonymise the identity of the financial institution against whom the complaints of discrimination were made.
7.9 Incident 1 - June 2001 - Refusal of Application for a Laser Card
Mr A states that in May 2001 he received a promotional leaflet from the Financial Institution espousing the benefits of a Laser Card. On receiving the leaflet, he applied for a Laser Card to Branch Y but was advised in a letter from his Branch Manager dated 6 June 2001 that the Branch was not in a position to offer him a facility at that time. Mr A says that no reason was communicated to him at the time for the refusal. He says that he subsequently got the same service from another institution.
For their part, the respondents provided general information as to how Laser Card applications would have been assessed in 2001 and explained that the Institution regarded a Laser Card as a valuable commodity and that, at the time, Laser Card applications would have been subjected to the same level of scrutiny as any other form of loan or credit application. It was explained that the Institution would have had a concern over the fact that a customer could significantly overdraw his or her account with a Laser Card and that a Laser Card could also be used as a cheque guarantee card with consequent exposure and potential loss to the Institution. Because of this, the respondents say that it would have been the practice of managers at the time to take a very cautious approach with regard to all such Laser Card applications. Factors normally taken into account would include lodgement patterns, security of employment and whether the applicant was residing in own or rented accommodation
From my own knowledge as to how the Laser Card scheme works and the terms and conditions under which other Financial Institutions allocate Laser Cards, I have a serious difficulty in accepting that the respondents are as particular as they claim in assessing and approving Laser Card applications. As evidence that they operate a strict policy in relation to the approval of Laser Card applications, the respondents were asked to provide details of the number of such applications that were refused by the Branch in question in 2001. However, the respondents replied that this information was not available but were able to confirm that 125 applications had been approved or reissued.
In the absence of any hard evidence as to the level of Laser Card applications that were rejected in 2001, I am left to decide on the complainant’s case without any comparative evidence.
In the complainant’s case, the respondents confirm that the manager of their Branch Y assessed Mr A’s application in June 2001 and sent him a letter of refusal on 6 June 2001. The Manager did not, however, appear at the Hearings to explain how his decision was arrived at nor were the respondents able to locate the file relating to Mr A’s Laser Card application.
The only evidence provided by the respondents relating to the Laser Card refusal is a copy of the Branch Manager’s refusal letter of 6 June 2001 and a copy of an internal memo by the same Manager dated 11 September 2001 relating to a lodgement of $18,500 made to the complainant’s account (see further details below). The text of the letter of 6 June 2001 reads as follows:
“ I refer to our recent conversation to your application for a Laser Card on your current account.
I regret to advise you that the bank is not in a position to offer you this facility at the present time”
The internal memo of 11 September 2001 contains the following text:
“He was declined a Laser Card facility as the lodgements coming into his account from May 2000 to May 2001 were irregular. He claimed that these payments were remuneration for work he had done in France and England.”
On considering these documents and the other evidence before me, I have formed the opinion that the Branch Manager did have some genuine concerns in June 2001 about approving a Laser Card, particularly because of the lodgements from abroad into the applicant’s account (£3000 and £3629 in December 2001 and January 2001 respectively). I am also satisfied from the evidence before me that the manager did take the time to discuss the lodgements with Mr A prior to making his decision to refuse the laser facility “at the present time”.
While the allegation has been made that the complainant’s Nigerian nationality may have been a factor in the Manager’s decision, I consider that, irrespective of the complainant’s nationality, there were other well-founded reasons for the Manager’s decision to refuse the Laser Card application at that particular time. I, therefore, find that the complainant has not established a prima facie case of discrimination on the race ground in relation to the refusal of his application for a Laser Card.
7.10 Incident 2 - November 2001 - Refusal of a £1000 overdraft on Mr A's current account
By November 2001, Mr A had been employed for 8 months with his salary being paid directly into his bank account in Branch Y, normally between the 19th and 24th day of each month.
Mr A maintains that on 20 November 2001, he booked a flight for the evening of 21 November to attend a funeral in Nigeria. At that time, he had a total of £20.32 in his bank account, according to his bank statements. As his salary cheque for £1179 was due to be lodged in the next few days, he submitted a written application for an overdraft of £1000 to Branch Y. He later received a call saying that the Branch could not approve an overdraft for him. As a result, Mr A said that he had to defer his flight and wait for his salary to be lodged, which cost him additional expense.
With regard to the refusal of an overdraft, the respondents say that there were a number of factors which influenced the decision to refuse him an overdraft:
- He had only enjoyed a regular income into his account for 6 months
- He had already been refused a Laser Card because of irregular payments to his account
- A total of £42,000 had gone through his account in the 2001 year and his bank balance was very low (less than £100) at the time he sought the overdraft
- Questions had been raised over the lodgement of a sum of $18500 to his account two months previously
- Mr A was departing the jurisdiction leaving the respondent without recourse in the event that any sums advanced were not repaid.
Based on the above, the respondents maintain that no prudent credit institution would have advanced moneys in those circumstances.
On considering this matter, I have reached the conclusion that the bank had sufficient grounds for refusing an overdraft facility to Mr A at that point in time, in particular because of the fact that Mr A was leaving the country, his bank balance had dropped from over £6000 to less than £100 in under 6 months and serious questions had been raised over the lodgement of a payment of $18,500 to his account from abroad. If more notice had been given, it might have been possible for the Institution to check whether a salary cheque was due. However, it would appear that there was very little time available to the Institution as the application is dated 21 November 2001, the same day that Mr A says that he was due to fly to Nigeria.
Accordingly, I consider that the respondents were adhering to standard procedures in refusing Mr A an overdraft application at short notice and I do not consider that their actions constituted discrimination. I, therefore, find that the complainant has not established a prima facie case of discrimination on the race ground in relation to his application for an overdraft in November 2001.
7.11 Incident 3 - November 2001 - February 2002 Application for Visa Card
In November 2001, Mr A Received a “flyer” from the respondent’s Direct Marketing Department saying that he was deemed to be a suitable candidate for a Visa Card. On foot of this, Mr A submitted an application. In mid-December, Mr A received written confirmation that his application had been approved. He was also given a PIN No and told that his card could be collected from Branch Y .
On 4 January 2002, Mr A called to Branch Y but was told that there was no card there for him. When he rang Direct Marketing, they confirmed to him that his card had been sent on 19 December 2001. When he enquired again at his local Branch on 14 January 2002, he was told that a Visa Card could not be issued to him due to “the nature of his account” and that his application had been approved in error. As he was not satisfied with this explanation, he wrote directly to the CEO of the Financial Institution that day claiming that he had been discriminated against.
On 18 February 2002, Mr A received a letter from the Financial Institution overturning their original decision and stating that a Visa Card had now been issued in his name and that it could be collected from their Area Manager, Mr C at a different Branch. Mr A met Mr C shortly afterwards at which Mr C apologised for the “misunderstanding” and handed over the Visa Card. Mr A states that Mr C gave him his card and told him to phone him if any problems arose in the future.
On considering the sequence of events outlined above, I can fully understand the complainant becoming increasingly annoyed over the treatment he was receiving as time progressed as, on the face of it, it would appear that the Institution was doing all in its power to thwart, confuse and mislead the complainant. In the absence of any credible explanation for their actions, I consider that the complainant was fully justified in believing that the treatment he was receiving could be attributed to his nationality.
However, when one considers what was going on “behind the scenes” within the organisation, a different perspective emerges which, while highlighting certain failings at management level, suggests that there were other non-discriminatory factors in play which led to the withholding of the complainant’s Visa Card.
In their defence, the respondents have made specific reference to a matter which arose in September 2001 which they maintain had an impact on their dealings with the complainant subsequent to that date.
The matter in question involved a lodgement of $18,500 from abroad to Mr A’s current account on 11 September 2001. The respondents explained that, under the provisions of the Criminal Justice Act 1994, significant obligations are placed on financial institutions with regard to customers’ accounts in situations where unexplained transactions involving large amounts take place. One such obligation is that the Institution is prohibited from telling the customer concerned that they are the subject of an investigation.
As outlined above, Section 32 of the Criminal Justice Act 1994 specifically provides that financial institutions initiate an investigation into “transactions that, either as an individual transaction or a series of transactions which are or appear to be linked, amount in the aggregate to at least £10,000” .
In the case of the €18,500 lodgement, Mr F in Branch Y contacted Mr A directly to establish firstly whether he was expecting the money transfer and secondly to enquire as to the purpose of the lodgement. In this case, Mr A says that he informed the Institution that the money consisted of education fees for some relatives of his in Ireland. Mr F says that he recalls Mr A saying that the money was a “liquidation of his assets” and would be used to assist him in setting up in business in Ireland and that further lodgements could be expected. As Mr F was not totally happy with the explanation given, he consulted with his Branch Manager who decided to refer the matter to the Head of Internal Audit, in accordance with their obligations under the Criminal Justice Act 1994. The respondents say that a memo outlining the events that had occurred was sent to Internal Audit for attention on 11 September 2001. Mr A would not have been made aware of this memo at the time.
With regard to the Visa Card application, the respondents state that the initial approval of a Visa Card for Mr A in December 2001 was a mistake and arose from an internal error. The respondents explained that the practice is for Direct Marketing to send a “pre-approval list” of potential customers who could be granted a Visa Card to local Branches for consideration. The respondents state that such a list containing Mr A’s name was received and examined by the then manager in December 2001 who decided that Mr A’s name should be deleted from the list. The respondents say that this decision was taken because the manager was aware that a money laundering enquiry had been initiated into the transfer of $18,500 into Mr A’s account in September.
Unfortunately, say the respondents, the manager concerned omitted to delete Mr A’s name from the list despite having decided that he should not be granted a Visa Card. As a result of the manager’s error, Direct Marketing informed Mr A, on or about 17 December 2001, that he had been granted a Visa Card and that it would issue shortly.
What happened next in the Branch has not been confirmed directly as the key parties involved at the time are no longer working for the Institution and did not attend the Hearings. As a result, I can only form my own opinion of what happened based on the evidence that has been made available rather than on the respondent’s speculation as to the involvement of each of the missing parties in the events that unfolded. The following account is, therefore, my impression of what occurred within the Branch in December 2001 and January 2002 based on the evidence presented before me.
On or about 19 December 2001, Ms D in Branch A received a Visa Card for Mr A from Direct Marketing. As Ms D was aware that a money laundering enquiry had been referred to Internal Audit some months earlier, she had reservations about issuing the Visa Card and phoned the Head of Internal Audit, Mr E, to establish the current state of the enquiry. At that point, it would appear that she was informed that Internal Audit had no record of the original internal memo dated 11 September 2001. She then faxed a copy of the original memo to Mr E on 19 December 2001 and received an instruction in return to refer the account to her local Branch Manager with a view to “intercepting” the Visa Card.
It was only at that point that Internal Audit commenced its own internal investigation proceedings in relation to the suspicion of money laundering. These investigations continued for a few weeks concluding with a decision by Internal Audit to refer the matter to the Gardai on 11 January 2002. The Garda enquiry went on for six months until a letter was eventually received on 23 July 2002 indicating that the Gardai would not be taking any further action in the matter.
The complainant, however, was totally unaware at this time of what was going on behind the scenes in the Financial Institution. In early January 2002, Mr A called to Branch Y to collect his Visa Card and was initially told that it had not arrived. On checking with Direct Marketing, he was informed that it had been sent to Ms D. On 11 January, he met with Ms D who told him that the Branch Manager would like to speak to him. At that point, the Branch manager told him that the Visa Card had been approved in error and that the decision to issue a card had been rescinded due to the “nature of his account”. No other explanation was given. The absence of an acceptable explanation from the Branch Manager prompted Mr A to write directly to the CEO of the Institution claiming that he had suffered discrimination and, based on the information he had to hand at the time, I can understand why he felt that he was justified in taking this step.
On receipt of the letter of complaint from Mr A, the institution were faced with a dilemma. They were now in a situation where they were prohibited by the terms of the Criminal Justice Act from disclosing to the complainant the real reason why his Visa Card had been withheld - that he was the subject of a money laundering investigation. Faced with this dilemma, the Institution decided that the best course of action was to overturn their previous decision and to issue Mr A with a Visa Card rather than prolong the exercise of concealment.
Mr A’s Visa Card was subsequently given to him in late February/early March at a meeting with the Area Manager as the respondents felt that a “personal approach” was desirable in view of what had transpired.
On considering the above events, I can fully understand why the complainant felt that he was the subject of discriminatory treatment. The above sequence of events highlight serious failings in the internal workings of the Institution, firstly, with regard to the apparent failure of an internal memo to reach its destination and, secondly, in regard to the inability of management to properly screen lists of potential Visa Card recipients. If these matters had been properly and promptly addressed at the time, it is possible that this complaint may never have materialised.
However, on considering the evidence before me, I consider that the Visa Card “debacle” initially arose from a management failing and a further complication that a money laundering enquiry had not been initiated on time. I, therefore, consider that discrimination was not a factor in delaying the issue of a Visa Card as I consider that the respondents would have had justifiable reasons at the time for deferring the issue of a Visa Card pending the results of the money laundering enquiry.
I, therefore, consider that, while this episode has identified deficiencies in the administrative system as it then operated, there is no hard evidence to indicate that the treatment afforded the complainant was less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances. I, therefore, find that the complainant has not established a prima facie case of discrimination on the race ground in relation to the withholding of his Visa card.
7.12 Incident 4 - Feb 2002 - Application for €12,700 Term Loan refused by Branch X
On 8 February 2002, Mr A submitted an application to Branch X for a Term Loan over a repayment period of 5 years. Mr A stated that the purpose of the loan was to upgrade his car. In response to his application, he says that he received a letter stating that his application had been “declined” but that no reason was given for this decision. This letter was not produced in evidence.
The respondents state that they have been unable to locate any documentation relating to Mr A’s application to Branch X for a loan in February 2002. They do not deny, however, that a loan application for €12,700 was received and rejected in February as a reference to the application being declined has been found on their computer system. Their is no supporting documentation available, however, to explain the background to the decision and they can only assume that the decision was taken in line with standard guidelines available to staff at the time. At the Hearing, all the respondents could suggest was that the loan may have been refused because it was unsecured and that the applicant was living in rented accommodation at the time.
The reason put forward by the respondents for the non-availability of the loan application documentation is that there were major renovations underway in Branch X around that time which resulted in subsequent difficulties being experienced in locating certain files.
7.13 Incident 5 - May 2002 - Application for €13,000 Term Loan refused by Branch Y
Mr A states that he applied to Branch Y in May 2002 for a term loan of €13,000 over 5 years for the stated purpose of financing his thesis research, home improvements, a holiday and a car upgrade.
The respondents documentation shows that the application was refused as the applicant was seeking a repayment term of 5 years to pay for a holiday which is normally subject to a maximum 12 month repayment term. Another purpose identified was home improvements although the applicant was living in rented accommodation at the time. In addition, the respondents maintain that there was no loan security involved and that a Credit Bureau check at the time showed that 6 different financial institutions requested credit checks on the applicant in June 2002. (The accuracy of the information relating to these credit checks was called into question at the Hearings by the complainant). On the basis of the above information, the respondents claimed that any applicant, regardless of nationality, would have been refused a loan.
In considering the reasons identified by the respondents for declining the applicants loan applications in February 2002 and May 2002, I have had regard to the respondents’ Lending Policy Guidelines for staff dated March 2002. In particular, I have taken cognisance of the guidelines relating to term loans and to the matrix which identifies a variety of purposes for which loans are sought and recommends maximum repayment terms for each purpose. For example:
- Loans for holiday purposes are subject to a maximum 12 month repayment term
- Purchase of a second hand car is subject to a maximum 4 year repayment term while a new car is subject to a 5 year term
On the basis of this matrix, it is clear that the complainant’s application for a loan to finance a holiday does not comply with the stated criteria and, bearing in mind the fact that home improvements for rented accommodation were also identified, I am prepared to accept that the respondents had a genuine reason for rejecting the complainant’s application for a loan in May 2002 and that their standard Loan Policy Guidelines were properly applied in that instance.
In addition, I am also conscious of the fact that staff in Branch Y would have been aware at the time that a money laundering enquiry associated with the applicant was still ongoing and I consider that the respondents would have been justified in taking this fact into consideration when considering the loan application.
Based on the evidence before me in relation to the May 2002 loan application, I consider that the treatment afforded the complainant was not less favourable than the treatment a person not covered by the race ground would have received, in similar circumstances. I, therefore, find that the complainant has not established a prima facie case of discrimination on the race ground in relation to the refusal of his loan application in May 2002.
The circumstances surrounding the complainant’s application for a €12,700 loan from Branch X in February 2002, however, are different in my opinion. On that occasion, the evidence before me indicates that the sole purpose of the loan application was for a “car upgrade”. Having further regard to the Institution’s Lending Policy matrix referred to above, I note that the repayment term specified for car purchase ranges from 48 to 60 months, meaning that Mr A’s loan application would appear to have been in keeping with the guidelines specified.
I have also noted the respondents' claim that the fact that the complainant was living in rented accommodation would have been a factor in the decision to refuse his loan application. In considering this point, I have taken note of the respondent’s letter of 15 March 2005 in which they confirm that another foreign national was accepted as satisfying the Company’s credit criteria and was granted credit facilities in November 2001 while also living in rented accommodation. This admission, in my opinion, weakens the respondents’ case particularly when one considers that the complainant was in steady employment for almost a year at the time his application was refused.
In considering whether the loan refusal in February 2002 constituted discrimination, I have also taken on board the fact that the respondents have said that staff in Branch X would not have been made aware of the fact that a money laundering enquiry had been initiated in relation to the applicant in another Branch.
Accordingly, it would appear that the February 2002 application would have been evaluated solely on the basis of the Institution’s Lending Policy. Unfortunately, however, the respondents have been unable to produce either the relevant staff or the documentation to explain how the February 2002 application was actually considered and decided upon.
Having deliberated on the totality of the evidence before me relating to the February 2002 refusal of a loan application I find that the complainant has established sufficient facts from which a presumption could be made that the refusal may have been guided by discriminatory reasons. I, therefore, find that a prima facie case of discrimination on the race ground has been established in this instance. I also find that, in not being able to produce either the relevant staff or the relevant documentation to provide clear contemporaneous evidence of the reason for the refusal in February 2002, that the respondents have failed to rebut the allegation.
Accordingly, I find, on the balance of probabilities, that the refusal of the complainant’s application for a loan in February 2002 constituted discrimination on the race ground contrary to the provisions of the Equal Status Act 2000.
7.14 Incident 6 - August 2002 - Review of application for €13,000 Term Loan by Ms B in Branch X.
On being refused a loan application in May 2002, Mr A contacted and met with the Area Manager again and it was agreed that his application would be reviewed by a different Branch. Ms B in Branch X was the person chosen to carry out the review.
Ms B discussed the application in detail with Mr A at a meeting in August 2002 at which time she says that he indicated that the money was partly required to pay off a Mastercard debt of €6000 and to reimburse his wife for money she had loaned him. Mr A also mentioned to her at the time that he had recently secured a €5000 car loan from AIB.
At that meeting, Ms B says that she would have had full access to Mr A’s account details from both Branch X and Branch Y. She said that she would also have had concerns over the large lodgements to Mr A’s current account in 2001 and the fact that, at the time they met, Mr A’s contract of employment had only 8 months to run. Ms B said that she was not, however, aware at the time that a money laundering enquiry had been initiated.
At the meeting, Ms B informed Mr A that she wanted a few days to consider possible loan options. Over the next few days she says that she then looked at a number of ways of structuring a loan for Mr A but finally concluded that Mr A was fully committed financially at that point and that approving a further loan for Mr A (on top of his AIB loan) would place undue pressure on his net disposable income and would have been an irresponsible lending decision by the Institution. Accordingly, she informed him some days later that she could not approve his loan application.
Based on the evidence before me in relation to Ms B’s review of Mr A’s loan application, I consider that Ms B had genuine concerns over Mr A’s ability to take on a further loan at that point and I consider, on the balance of probabilities, that Ms B would have afforded the same treatment to a person not covered by the race ground, in similar circumstances. I, therefore, find that the complainant has not established a prima facie case of discrimination on the race ground in relation to this incident.
In his complaint, Mr A made an allegation that Ms B had made racist comments to him about “foreigners coming to Ireland”. At the Hearing, Ms B denied this maintaining that such an allegation was personally offensive to her as her own grandparents had arrived in Ireland as immigrants from Europe.
In relation to the above, I find that I have two separate accounts of what was or was not said at the meeting between Mr A and Ms B. In the absence of any independent witnesses or hard evidence from either side, I find that I am unable to form an opinion as to what actually occurred. Therefore, as the onus is on the complainant to establish facts from which discrimination can be presumed to have occurred, I find that I have no other option but to find that a prima facie case has not been established in relation to this incident.
7.15 As outlined above, the incidents complained of occurred over a period of 15 months between June 2001 and August 2002. Having deliberated on all the incidents concerned, I find that the complainant has failed to establish a prima facie case of discrimination in all but one of the incidents.
With regard to the loan application made to Branch X in February 2002, however, I find that the complainant has established a prima facie case of discrimination. I also find that, in not being able to produce either the relevant staff or the relevant documentation to provide clear contemporaneous evidence of the reason for the refusalin February 2002, that the respondents have failed to rebut the allegation.
7.16 With regard to the allegation that the complainant was victimised, I find that there is insufficient evidence to indicate that this was the case as I consider that the actions of the respondents and the manner in which they dealt with the complainant were dictated by their obligations under the Criminal Justice Act 1994 rather than by a desire to punish or victimise the complainant.
8 Decision
8.1 I find that a prima facie case of discrimination has been established by the complainant on the race ground in relation to the refusal of his loan application in February 2002 in terms of sections 3(1) and 3(2)(h) of the Equal Status Act 2000 and that the respondents have failed to rebut the allegation. In relation to the other 5 incidents identified, I consider that a prima facie case has not been established.
Accordingly, I find in favour of the complainant in relation to the February 2002 incident and I order that the respondents pay Mr A the sum of €500 for any humiliation and distress suffered by him.
In light of the number of administrative failings identified in the course of this investigation, I would also suggest, if they have not done so already, that the respondents carry out a thorough review of their internal procedures to ensure that their business is conducted in an open and transparent manner and that all day-to-day transactions are fully recorded from now on.
Brian O’Byrne
Equality Officer
19 August 2005