Áine Wellar V Educational Building Society and Allied Irish Banks
1. Dispute
1.1 This dispute concerns a complaint by Ms Aine Wellard that she was discriminated against, contrary to the Equal Status Act 2000, by the Educational Building Society and Allied Irish Banks in not being provided with her ATM Pin No in Braille.
The complainant maintains that she was discriminated against on the disability ground in terms of sections 3(1) and 3(2)(g) of the Equal Status Act.
2. Summary of the Complainant's Case
2.1 This dispute concerns a complaint by Ms Wellard that she asked the EBS for her ATM Pin No to be sent to her in Braille but that this was refused.
3. Summary of Respondent's Case
3.1 The respondents totally reject that they operate a discriminatory policy against the visually impaired. They maintain that all ATM Pin Nos are generated and issued by computer for security reasons in a closed encrypted environment and that any form of manual interference with the existing computer system would have major cost and security implications. The respondents say that they previously offered to engage an outside agency to translate Ms Wellard’s Pin No into Braille for her but that this offer was refused by the complainant.
4 Delegation under the Equal Status Act, 2000
4.1 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 the 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.
5.1 Evidence of Parties
The complainant, who has a serious visual impairment, has been a customer of EBS since 1996.
Prior to 1996, Ms Wellard had an account with the Ulster Bank and was issued with an ATM card and Pin No. She says that on that occasion the Pin No came in Braille format in a sealed envelope. She accepts, however, that the Pin No may have been transcribed into Braille by a member of staff rather than by any automatic secure procedure.
She often used that card and made a habit of using a particular machine in a particular Bank where she became familiar with the layout of the ATM machine which had a tactile keypad. If she was in difficulty, she would summon one of the bank staff for assistance.
In 1997, she was issued an ATM card and Pin No by the EBS. She says that the EBS Pin No probably issued to her in the standard format and that she had to ask a friend to read it to her.
She only recalls using the EBS card once in Grafton Street. She thinks she might have lost it subsequently which would explain why it was not used since
When her EBS ATM card came up for renewal in December 2000, she asked the EBS to provide her with her Pin No in Braille format. She did so as she felt that, in the 21st century, financial institutions should have the technical expertise to provide their full range of services in Braille.
In reply, she was told that her request could not be acceded to for technical reasons.
Ms Wellard believes that she may have received her Pin No in early 2001 in the normal manner. However, as the contents of the envelope would not have been obvious to her, she says that it is likely that she thought it was junk mail and threw it away.
At the Hearing of this complaint on 5 May 2005, the EBS said that their ATM Card service was outsourced to the AIB in 1998 and that the AIB now has full responsibility for issuing Pin Nos.
Also at the Hearing, the respondents explained how their Pin No generating system works. They explained that all ATM Pin Nos are generated in a closed encrypted environment by computer for security reasons and that there is no manual input involved by staff. The EBS generates a Pin No for its customers in an encrypted format. This is then sent to the AIB whose own encrypted system produce the Pin No in a sealed EBS envelope which is then sent directly to the customer.
The whole system is encrypted internally to ensure that details of an individual’s Pin No are not disclosed to anyone including staff members.
To ensure confidentiality, ATM cards and Pin Nos are sent to the customer under separate cover. The Pin No itself is automatically generated by computer and sent directly to the customer in a tamper-proof format. The whole process is designed from start to finish to protect the confidentiality of customers’ Pin Nos .
The respondents also indicated that in 2004, their Pin No system was re-engineered to enable their encryption system to generate the Pin No under a “black patch” at the bottom of a letter addressed to the customer.
On receipt of this letter, the customer has to peel away the piece of paper covering the “patch” to expose their Pin No. Any form of prior tampering with the patch would be obvious to the customer on receipt of the letter enabling them to report this and seek an alternative number.
The AIB said that this system works exceedingly well and that they see no reason to change.
Apart from the complainant herself, neither the EBS nor the AIB have received any other requests from visually impaired customers to have their Pin Nos issued in Braille. The respondents also say that, to their knowledge, no other financial institution has the capacity for producing an automated Braille Pin No without manual intervention.
The system as it stands cannot generate Braille Pin Nos and the respondents say that technically it is unlikely that this can be done without compromising existing security arrangements and that there would be a huge cost factor involved.
The respondents state that any attempt to re-engineer the existing system to accommodate Braille Pin Nos would require “man-years” of work and, even then, the need for manual intervention could not be ruled out.
When Ms Wellard approached the EBS in late 2000 for a Braille Pin No, the EBS consulted with AIB and then explained to her the technical and security issues that would arise.
The respondents say that they subsequently offered to make arrangements to have Ms Wellard’s Pin No manually transcribed into Braille. They said that they offered to send her details to a local Irish organisation which specialises in Braille translations but that Ms Wellard told them that she was not happy with that proposal
The respondents understood from this that Ms Wellard was objecting in principle to anyone outside the banking system gaining knowledge of her Pin No
At the Hearing, Ms Wellard said that this was a misunderstanding on the respondents part as her objection at the time was solely against the suggested organisation. She explained that she turned down the offer because many of the people in the organisation concerned would have known her personally and she did not want her personal information to be disclosed to them
Ms Wellard said that, if a particular UK company, who provide similar Braille services, had been suggested at the time, she probably would have accepted the respondents offer.
5.2 At the Hearing on 5 May 2005, the AIB said that they have always endeavoured to do all in their power to accommodate people with disabilities. With regard to the visually impaired they say that they have many such customers and that they are extremely aware of the difficulties they encounter. The AIB has at least 200 visually impaired customers who receive their monthly bank statements in Braille format, which are prepared in a dedicated Unit within the Bank.
In recognition of the problems highlighted by Ms Wellard, AIB said that they had recently been exploring other potential options for producing a Pin No in Braille without compromising the security of the system and had come up with a possible solution which could be facilitated under the new system introduced in 2004, assuming the customer was agreeable.
The proposal involves a practice whereby a Braille version of the person’s Pin No can be issued without any breach of security or customer confidentiality. The AIB estimated that the turnaround time for the process would be between 5 and 7 days which would be the same as sending the Pin No to an outside organisation for translation.
At the Hearing, the proposal was explained in detail to Ms Wellard who welcomed the initiative and said that she could see no reason why it could not work.
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)(g) of the Act specifies the disability 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 she was discriminated against on the grounds of her disability contrary to Sections 3(1), 3(2)(g) and 5(1) of the Equal Status Act, 2000 in not being provided with a Braille version of her Pin No.
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 disability 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 has satisfied me that she is visually impaired. In relation to (b), the respondents acknowledge that the complainant was not provided with a Braille version of her Pin No. 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 disability ground would have received, in similar circumstances, and whether such treatment was contrary to the provisions of the Equal Status Act.
7.3 Ms Wellard explained at the Hearing that she brought this complaint in order to highlight the disadvantages that visually impaired people encounter when trying to avail of certain bank services. With regard to the allocation of Pin Nos, Ms Wellard explained how a visually impaired person is at a disadvantage by having to ask someone else to read their Pin No to them as this enables that other person to have access to privileged information about their personal banking details. In this regard, Ms Wellard believes that she and others in the same position are being treated as “second class citizens”.
7.4 When Ms Wellard originally approached the EBS asking for her Pin No in Braille, it would appear that the EBS offered to accommodate her by asking an Irish based organisation to translate the details into Braille format for her. Ms Wellard indicated at the time, however, that she was not happy with this proposal. At the Hearing, Ms Wellard explained thather only objection to this offer was that many of the people in the organisation concerned would have known her personally and she did not want her personal information to be disclosed to them. She also explained that she would have no objection to the data being translated by an organisation who had no personal involvement with her.
Unfortunately, however, it would appear that this was not made clear to the respondents in 2001 as theysay that their interpretation at the time was that Ms Wellard was objecting in principle to anyone outside the banking system gaining knowledge of her Pin No.
As a result of this misunderstanding, the respondents ruled out the option of having the Pin No translated manually and began to explore ways of trying to generate a computer-produced Braille Pin No without compromising the security of the existing encryption system. Their enquiries showed, however, that technically it was highly unlikely that this could be done without compromising existing security arrangements. The respondents also established that any attempt to re-engineer the existing system to accommodate Braille Pin Nos would involve huge cost and require “man-years” of work and, even then, the need for manual intervention could not be ruled out.
7.5 Definition of “nominal cost” in the Equal Status Act
Section 4 of the Equal Status Act 2000 provides as follows:
(1) For the purposes of this Act, discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
(2) A refusal or failure to provide special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
As outlined above, the respondents have indicated that a major cost would be involved in trying to re-engineer their existing encryption system to accommodate the issue of Pin Nos in Braille format and I am prepared to accept that this would be the case. I am also prepared to accept that the likely cost involved in such a undertaking would far exceed the “nominal cost” envisaged in the Equal Status Act especially considering that Ms Wellard is the only person to have ever sought this service. Accordingly, I consider that the respondents are exempted under Section 4 of the Act from having to restructure their existing encryption system to accommodate the production of Pin Nos in Braille format.
As outlined in paragraph 5.2 above, the respondents have recently identified an alternative method of providing visually impaired people with their Pin No in Braille, without any need to breach their security system, and Ms Wellard has indicated that she is supportive of this proposal. As the cost involved in implementing this new proposal would, in my opinion, be in keeping with the “nominal cost” envisaged by the Equal Status Act, I consider that it is appropriate for the respondents to offer this service to those visually impaired customers who may now wish to avail of it otherwise they may leave themselves open to accusations of discrimination in the future.
This option was not, however, available when Ms Wellard originally lodged her complaint, and, therefore, cannot be considered in the context of my current investigation.
7.6 The evidence before me shows that the respondents only became aware that a service of theirs may be creating problems for visually impaired people when Ms Wellard originally highlighted her difficulty to the EBS in late 2000. On learning of this problem, it would appear that the respondents made immediate enquiries with a view to rectifying the situation but discovered that the cost involved would be prohibitive with no assurance that manual intervention would not still be required.
The respondents then made an attempt to address the situation by offering to have the Pin No translated for Ms Wellard by an outside organisation. Unfortunately, however, because of a misinterpretation of Ms Wellard’s reasons for not accepting that offer, the respondents felt that they were left with no other means of addressing the problem apart from re-engineering the entire Pin No encryption system at huge expense. As a result, a “stalemate” appears to have arisen leading to the matter eventually coming before me at Hearing on 5 May 2005.
7.7 In considering whether discrimination occurred in this instance, I accept that the potential cost of altering the respondents’ encryption system to provide Pin Nos in Braille would be prohibitive. I, therefore, find that the respondents are exempted under the “nominal cost” provision contained in Section 4 of the Act.
Accordingly, I find that a prima facie case of discrimination had not been established and find in favour of the respondents in the matter.
8 Decision
8.1 I find that a prima facie case of discrimination has not been established by the complainant on the disability ground in terms of sections 3(1) and 3(2)(g) of the Equal Status Act 2000 and I find in favour of the respondent.
8.2 As outlined above, the respondents have now identified a practice whereby a Braille version of a person’s Pin No can be issued without any breach of security or customer confidentiality and that this service could be provided at a “nominal cost”. I would, therefore, recommend that the respondents make this service available as soon as possible to those visually impaired customers who wish to avail of it. I also trust that this service will be offered to Ms Wellard should she decide to seek a new Pin No in the future.
Brian O'Byrne
Equality Officer
28 July 2005