DEC-S2008-049 - Full Case Report

Equal Status Acts, 2000-2008

Equality Officer Decision DEC-S2008-049

Ms. Phyllis Fahey

(represented by Ms. Geraldine Hynes, Solicitor,

The Equality Authority)

-v-

Ulster Bank

(represented by Mr. Robert Browne, Solicitor,

McKeever Rowan Solicitors)

Keywords

Equal Status Acts, 2000-2004 - Section 3(1)(a) - Direct discrimination, Section 3(1)(c) – Indirect discrimination, Section 3(1)(a) - Age  Ground, Section 3(2)(f) - Disposal of Goods and Services, Section 5(1)

Delegation under the Equal Status Acts, 2000-2004

This complaint was referred to the Director of the Equality Tribunal on 22^nd April, 2005 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2004, the Director delegated the complaint to me, Enda Murphy, 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 to 2004.  The hearing of the case took place on 3^rd July, 2008.  Final correspondence was received from the parties on 7^th August, 2008.

1.            Dispute

1.1             This dispute concerns a complaint by Ms. Phyllis Fahey that she was discriminated against by the respondent on the Age groundin terms of Sections 3(1)(a), 3(1)(c) and 3(2)(f) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Act, 2000. 

2.            Summary of the Complainant’s Case

2.1             The complainant, who was aged 70 years at the time of the alleged incident of discrimination, telephoned the Ulster Bank in Maynooth on the afternoon of 15^th February, 2005 to enquire about taking out a car loan for an amount of €6,000.  She had just finished repaying her previous car loan to a finance company and was seeking a loan from the respondent in order to change her existing car.  The complainant had been a customer of the Maynooth branch of Ulster Bank for the previous 10 years and had a substantial amount of money on deposit in her account.  The complainant did not have any other borrowings with the Ulster Bank and both her and her husband’s pensions were paid directly into the Maynooth branch.  The bank official, Ms. X, with whom the complainant spoke on the telephone, requested confirmation of her age before putting her on hold while she consulted with the branch manager.  When Ms. X returned to the telephone she informed the complainant that the branch manager had stated that it was bank policy not to grant loans to anybody over the age of 65 years.  The complainant challenged the bank official, Ms. X, on the basis that she had an excellent record in her dealings with the Ulster Bank over the previous 10 years and that her accounts had always been in credit.  However, the bank official while remaining apologetic informed the complainant that those were the bank’s rules.  The complainant states that she was very embarrassed and upset by the bank’s refusal to grant her a loan and she was further embarrassed when she had to contact the car dealership, where she had earlier put down a deposit on a new car, in order to cancel it.  The complainant claims that this made her look as if she had a very poor credit rating.

2.2             The complainant subsequently contacted a Car Finance Company and a Credit Union to enquire if either institution imposed an upper age limit for granting car loans and both of these institutions confirmed that they did not.  The complainant obtained the car loan from the Credit Union without any difficulties and she subsequently purchased the new car from a different car dealership as she was too embarrassed to return to the car dealer with whom she had originally put down a deposit.  The complainant subsequently contacted the Ulster Bank in Maynooth to inform the bank that she had managed to secure a loan elsewhere without any difficulty and on this occasion she again spoke to Ms. X, the bank official with whom she had originally dealt with on 15^th February, 2005.  Following this contact with the bank, the complainant received a telephone call from Mr. Y, the Branch Manager, and when she informed him that she had been offered the car loan from two other financial institutions he replied that they probably operated under different regulations and he stated that it was the policy of Ulster Bank not to give loans to persons over the age of 65 years.  The complainant notified the respondent on 16^th March, 2005 that she proposed to submit a complaint to the Equality Tribunal regarding this matter.  Mr. Y indicated in his written response to this notification that telephone queries received by the bank regarding lending facilities were normally taken with a view of indicating to the applicant the procedures and criteria that are taken into consideration when assessing loan applications.  He also indicated in this response that it is normal procedure for an applicant to be invited to call to the branch for an interview and to bring supporting documentation in order to discuss the loan application.  The complainant states that she was extremely annoyed at the bank’s response and claims that the requirement for an interview was neither referred to nor offered to her in any of her telephone conversations with the respondent’s bank officials despite the fact that the respondent had three opportunities within which to invite her for an interview.  The complainant submits that the respondent failed to consider her request for a loan in accordance with its established assessment criteria and she contends that the only reason she was refused a loan by the respondent was on the grounds of her age.  

2.3             The complainant also submitted that the respondent’s stated practice of treating applicants differently when they are not in full time employment is indirectly discriminatory against older people, since a requirement to be in full time employment is “an apparently neutral provision” which would put older people at a particular disadvantage compared to other persons.  The complainant claims that this is not a justifiable condition for assessment of risk or ability to pay and is, therefore, unlawful discrimination.                 

3.            Summary of the Respondent’s Case

3.1             The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of her age.  It submits that there was a misunderstanding between its branch official, Ms. X and the complainant during the course of the initial telephone query about a car loan.  However, the respondent denies that the complainant was refused a car loan on the basis that she was over the age of 65 years or that it operates a discriminatory lending policy on the grounds of a persons age.  The respondent’s credit policy states that the only criterion, in terms of the age of an applicant, is that they are at least 18 years of age, this being the age at which capacity to contract is legally recognised and the respondent submitted that it does not impose an upper age limit in assessing personal loan applications.  The other criteria which the respondent takes into consideration when assessing an application for a car loan include the employment situation of the applicant, repayment capacity, track record and credit check. 

3.2             The respondent submitted that its branch officials could receive anything between 50 and 100 telephone queries during the course of a working day and given that the incidents which are the subject of the present complaint are alleged to have taken place some three and a half years from the date of the hearing, it was submitted the recollection of the officials that dealt with the complainant have become impaired with the passage of time.  The respondent accepts that the complainant telephoned the branch on 15^th February, 2005 in order to enquire about a car loan.  Ms. X, Bank Official, spoke to the complainant on this occasion and although her recollection of this conversation was very vague, she can recall requesting the complainant to provide details of her date of birth as this information did not appear on the system records that were available to her.  Ms. X asked the complainant if she had any objection to providing this information and she claims that the complainant was reluctant to disclose her date of birth as she was of the opinion that this information should have already been available to the bank.  The respondent claims that it was standard practice when dealing with customers on the telephone for its officials to request details of a person’s date of birth for the purposes of account security and in order to facilitate the updating of incorrect or incomplete information appearing on its records.  Ms. X recalls speaking to Mr. Y, the Branch Manager, around that time regarding the telephone conversation she had with the complainant and of informing him that she had requested the complainant’s date of birth as this information was not on the computer system.  Ms. X claims that she would have informed the complainant about the assessment criteria for loan applications and that it would be necessary to submit a loan application.  Ms. X stated that she has no recollection of informing the complainant during the course of their telephone conversation that the respondent did not provide loans to persons over the age of 65 years. 

3.3             Mr. Y, Branch Manager, stated that he recalls speaking to Ms. X about a conversation which she had with the complainant regarding a car loan.  Ms. X had sought direction from him as the complainant had indicated that she was over the age of 65 years and he informed Ms. X that age was a factor when considering a loan where an applicant was not in full time employment and over the age of 65 years.  Mr. Y claims that although he cannot fully recall the exact details of the conversation, his reply would have been that the bank would look at all factors when assessing loan applications, for example, repayment capacity, track record, credit check, and age and that anything outside of the guidelines would have to be sent to the respondent’s Retail Lending Unit for approval.  Mr. Y recalls speaking to the complainant on the telephone subsequently and of informing her of the respondent’s responsibilities under the Consumer Credit Act and that the only restriction in terms of an upper age limit was in relation to mortgage lending.  The respondent submitted that telephone queries about lending facilities are taken with a view of indicating to the applicant the procedures for assessment and to provide advice regarding the criteria that are taken into consideration.  The respondent submitted that it cannot give a definite answer on any loan application without putting it through its credit scoring system and following which the applicant is invited to call to the branch for an interview and to bring the required supporting documentation.  The respondent contends that the telephone conversation with the complainant did not get as far as arranging an interview at the branch; however, it denies that she was informed by any of its officials that it operated a policy of not affording loans to persons over the age of 65 years.   

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 2004 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 the present case, the respondent submitted that the recollections of its bank officials, namely Mr. Y, the Branch Manager, and Ms. X, Bank Official, who dealt with the complainant in relation to the incident have become impaired as a result of the lapse of time of approx. three and a half years between the alleged incident of discrimination and the hearing of the complaint. The respondent submitted that this delay has made it very difficult for it to comprehensively defend the allegations of discrimination.  In considering this issue, I note that the complainant has complied with the requirements of Section 21 of the Equal Status Acts and that notification of the complaint was sent to the respondent on 16^th March, 2005.  The respondent replied to this notification on 15^th April, 2005 and this reply included a memo which was completed by Mr. Y following discussions that he had with Ms. X regarding the alleged incident of discrimination on 15^th February, 2005.  I also note that Ms. X compiled a note regarding the details of her conversation with the complainant following the receipt of the notification of the complaint and that she referred to this note when giving evidence at the hearing.  I accept that a person’s recollection of events that occurred some three and a half years ago may become somewhat blurred with the passage of time, however, I am satisfied that the respondent received notification of the complaint within the statutory notification period of two months and was therefore, made fully aware and put on notice of the allegations that it would have to defend at that particular juncture.  In the circumstances, I do not accept the respondent’s argument that its defence against the alleged act of discrimination has been prejudiced by the length of time that it has taken to bring this matter to hearing.

Direct Discrimination

4.3             The question that I must decide in this case is whether or not the respondent discriminated against the complainant on the grounds of her age when she sought to obtain a car loan on 15^th February, 2005.  The complainant claims that she was refused a car loan by the respondent on the grounds of her age and that she was informed by both, Ms. X, Bank Official, and Mr. Y, the Branch Manager, that it was the bank’s policy not to give loans to persons over the age of 65 years.  The respondent claims that there was a misunderstanding between the complainant and Ms. X during the course of their telephone conversation on 15^th February, 2005 when the complainant was requested as a matter of routine to confirm the details of her date of birth.  The respondent claims that the complainant perceived this request as an infringement on her rights under the equality legislation; however, it denies that the complainant was refused a car loan on the basis that she was over the age of 65 years. 

4.4             In considering this issue, I note it is not disputed by the respondent that the complainant contacted the Maynooth branch of the Ulster Bank by telephone on 15^th February, 2005, when she was aged 70 years, in order to make enquiries about acquiring a car loan.  Neither is it disputed that the complainant was requested to provide details of her age by the bank official with whom she spoke on this occasion.  The complainant claims that the bank official put her on hold during the course of the telephone call and following consultation with the branch manager the official informed her that it was bank policy not to give loans to persons over the age of 65 years.  I also note the respondent claims that telephone queries about lending facilities are taken with a view to providing information to the applicant regarding the procedures and assessment criteria and that it would be normal procedure for an applicant to be invited to attend an interview at the branch before any decision is made whether or not to grant the application.  Having regard to the evidence adduced, I find that the respondent did not adhere to its stated loan application procedures in the present case and I am satisfied that the complainant was not invited or afforded the opportunity to attend an interview to discuss the loan application, despite the fact that the respondent had more than one opportunity within which to do so.  I have found the complainant to be a very credible witness and in considering the totality of the evidence presented, I find that the complainant’s evidence regarding the telephone conversation that she had with Ms. X on 15^th February, 2005 to be more compelling, and on the balance of probabilities, a more accurate account of the discussions that transpired on this date.  I am satisfied that the complainant was left in no doubt following this telephone conversation that her application for a car loan was being refused by the respondent on the basis that she was over the age of 65 years.  In coming to this conclusion, I have found the following uncontested evidence of the complainant to be particularly persuasive:

• The complainant contacted two other financial institutions following this telephone call to enquire if they imposed an upper age limit for granting car loans.
• The complainant subsequently contacted the car dealership where she had paid a deposit on a new car in order to cancel it.
• The complainant secured the car loan from a Credit Union despite the fact that she was an established customer with the respondent and had a substantial amount of money on deposit in her bank account.  I have also taken note of the fact that the complainant did not have any existing or outstanding loans with the respondent when she contacted it on 15^th February, 2005.
• The complainant subsequently contacted the respondent to inform it that she had been successful in obtaining the car loan with another financial institution and that this institution did not impose an upper age limit.

4.5             I am of the view that it is highly unlikely the complainant would have taken the aforementioned measures or actions if she had not been informed by the respondent on 15^th February, 2005 that her application for a car loan was being refused on the grounds of her age.  I am satisfied that it was during the course of the initial telephone conversation between the complainant and the bank official on this date that the actual incident of discrimination occurred.  I am also of the opinion that the respondent had a number of opportunities to address this matter during the course of its subsequent contact with the complainant, namely during the course of the subsequent telephone calls between the complainant and Ms. X and Mr. Y and in its written correspondence to the complainant following the receipt of her complaint; however it failed to do so.  Having regard to the foregoing, I find that the complainant has established that she was treated less favourably than a person who was under the age of 65 years would have been treated in a similar situation.  Accordingly, I find that the complainant has succeeded in establishing a prima facie case of discrimination on the age ground and that the respondent has failed to successfully rebut the allegation of discrimination.      

Indirect Discrimination 

5.1             The complainant submitted that the respondent’s stated practice of treating applicants for loans differently when they are not in full time employment is indirectly discriminatory against older people, since a requirement to be in full time employment is “an apparently neutral provision” which would put older people at a particular disadvantage compared to other persons.  The complainant claims that this is not a justifiable condition for assessment of risk or ability to pay and is therefore, unlawful discrimination.  Section 3(1)(c) of the Equal Status Acts states:

“3.- (1) For the purpose of this Act, discrimination shall be taken to occur –

(c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

In considering whether the complainant was subjected to indirect discrimination in the present case, I have noted the evidence presented by the respondent regarding the criteria that it took into consideration when assessing car loan applications.  In this regard, I note that Mr. Y, Branch Manager, gave evidence that the issue of whether a person is in full time employment is a factor that is taken into consideration when assessing a loan application if the applicant is over the age of 65 years.  I also note that Mr. Y stated in his letter to the complainant on 15^th April, 2005, that he informed Ms. X (in reply to her request for direction in relation to her telephone call with the complainant) that age was a factor when considering a loan where the applicant was not in full time employment and over the age of 65 years.  Mr. Y also indicated in this letter that the criteria which the respondent takes into consideration when assessing a loan application are repayment capacity, track record, credit check and age.  He also indicated that the respondent’s credit policy as to whether it should lend to an individual is based primarily on risk and on affordability and the respondent will ensure that an assessment is carried out to ensure that the individual has the ability to be able to repay the facility.  

5.2             In considering the provisions of Section 3(1)(c) of the Equal Status Acts, I am of the view that in order for a person to establish a case of indirect discrimination, it is necessary for that person to demonstrate that the apparently neutral provision, which is referred to in this section, puts that person at a particular disadvantage, in effect, compared to other persons.  If the person succeeds in this regard, it is then a matter for the respondent if it is to successfully rebut the allegation of indirect discrimination, to prove that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.  In applying this reasoning to the present case, I am of the view that in order for the complainant to establish a case of indirect discrimination, she must demonstrate that the “apparently neutral provision” i.e. the requirement to be in full time employment put her at a particular disadvantage compared to other persons in terms of the respondent’s decision to refuse her request for a car loan.  In considering this issue further, I have noted the respondent’s evidence that it does not approve car loan applications over the telephone and that its normal procedure is to invite the person who is making the loan application to attend an interview at the branch in order to make a formal application.  The respondent claims that the complainant, in the present case, did not get as far as the interview stage and therefore, that she did not make a formal application for a car loan. 

5.3             Based on the evidence presented, I have already found (as outlined in paragraph 4.4) that the complainant was directly discriminated against by the respondent on 15^th February, 2005 on the basis that she was refused a car loan on this date on the grounds of her age i.e. by virtue of the fact that she was over the age of 65 years.  In coming to this conclusion, I am satisfied that the complainant’s request for a car loan was not assessed in accordance with the aforementioned criteria as outlined by Mr. Y but rather that a summary decision was taken following consultation between Ms. X and Mr. Y on 15^th February, 2005 that the complainant was not eligible for a car loan on the grounds that she was over the age of 65 years.  I am also satisfied that the respondent, in coming to its decision to refuse the complainant’s request for a car loan, did not take any measures to establish whether or not she was in full time employment and I therefore find that this requirement was not taken into consideration by the respondent in terms of its decision to refuse the car loan application to the complainant on 15^th February, 2005.  In the circumstances of the present case, I find that the “apparently neutral provision” which the complainant alleges was invoked i.e. the requirement to be in full time employment was not taken into consideration by the respondent and that it did not form the basis of any assessment as to whether the complainant should be refused the loan.  Having regard to the foregoing, I am therefore satisfied that this requirement did not put the complainant at a particular disadvantage as compared to other persons in terms of the manner in which her request for a loan was assessed.  Accordingly, I find that the complainant has failed to establish a case of indirect discrimination in terms of Section 3(1)(c) of the Equal Status Acts, 2000 to 2004.

6.            Decision

6.1             In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision.  I find that a prima facie case of discrimination has been established by the complainant on the Age ground in terms of sections 3(1) and 3(2)(f) of those Acts and I also find that the respondent has failed to rebut the allegation of discrimination.

6.2             In accordance with section 27(a) of the Acts, I award the complainant the sum of €2,000 in compensation for the upset and humiliation experienced.

Enda Murphy

Equality Officer

18^th August, 2008