Mr. F
-v-
A Financial Institution
(Represented by Mr. David Keane B.L. acting on instructions
from Mr. M, Chief Legal Officer )
1. Summary of the Complainant's Case
1.1 The complainant who is originally from Nigeria has resided in Ireland since 1998 and has since attained Irish citizenship. The complainant was an existing customer of Branch X at the time of the alleged incident of discrimination as he had opened a savings account with it in February, 1998. Having read some promotional literature belonging to the respondent the complainant presented at Branch X on 8th September, 2003 in order to open a Loyalty Current Account. The complainant wished to open this account so that his wages could be paid into it and by doing so to avail of the free banking service offered by this type of account. When the complainant presented his full Irish driving licence and an authentic current household bill, i.e. the requirements for opening a Loyalty Current Account that had been identified in the respondent's promotional literature, to the female bank official in Branch X, he was informed that it would also be necessary to provide six months bank statements from a previous bank account. The complainant questioned the need for this additional information and was informed by another bank official, Ms. B, that this requirement was necessary in order to establish the type of facilities that he would be entitled to avail of on the account. The complainant informed the bank official that he wished to avail of the free banking service offered by a Loyalty Current Account and he made it clear that he did not wish to avail of credit card or loan facilities. The complainant claims that he was told in a derogatory manner by Ms. B that it would be more appropriate to have his salary paid into his savings account and that it would not be necessary to open a Loyalty Current Account. The complainant expressed his dissatisfaction to Ms. B regarding her failure to open the account on this occasion and after acquiring a copy of the respondent's Personal Banking Guide Booklet he then left the premises.
1.2 Following this incident the complainant carefully studied the requirements for opening a Loyalty Current Account that were detailed in this booklet and returned to Branch X on 9th September, 2003 and presented his driving licence, a household bill and one year's bank statements from another financial institution to a male bank official that was on duty. This bank official informed the complainant that as his savings account was less than eight years old it would be necessary to provide his passport instead of his driver's licence in order to open a Loyalty Current Account. The complainant informed the bank official that this requirement was not consistent with the information outlined in the respondent's promotional literature. The complainant stated that Ms. B, the official with whom he had dealt with the previous day, intervened at this stage and again told him to get his salary paid into his savings account. The complainant contends that the Loyalty Current Account should have been opened by the respondent on both of the aforementioned occasions as he had provided the necessary information in accordance with the respondent's established requirements. The complainant further contended that the respondent was making it unnecessarily difficult for him to open this account.
1.3 The complainant made a complaint to the respondent's telephone banking service later that day on the basis that the Loyalty Current Account should have been opened on his first visit to the bank and that on his second visit his driving licence should have been accepted as proof of identification. The complainant received a telephone call from Ms. R, Assistant Manager, Branch X on 11th September, 2003 regarding this complaint and he stated that the main content of this discussion focused on whether or not the driving licence as opposed to his passport was acceptable as proof of identification. He contends that Ms. R attempted to justify the actions that had been taken by her colleagues. The complainant referred Ms. R to the respondent's promotional literature and to the relevant legislation and it was agreed that if he returned to the branch that she would accept his driving licence as proof of identification provided that it was in good condition. The complainant denied that Ms. R informed him during the course of this telephone conversation that Branch X of the respondent implemented stricter than normal requirements regarding proof of identification as a result of difficulties in that branch with fraudulent driving licences. The complainant acknowledged that Ms. R may have mentioned something about the requirement for a letter from his employer. However, he disputed that she informed him that this letter would have to state that his wages would be paid into the Loyalty Current Account.
1.4 The complainant returned to Branch X on 11th September, 2003 in a further attempt to open the Loyalty Current Account and on this occasion was in possession of his Irish and Nigerian passports, driving licence, one year's bank statements from another financial institution, a household bill, a recent pay-slip and work identity card. When he presented these documents to Ms. R, she informed him that he would also require a letter from his employer confirming that his salary would be paid into the account. The complainant argued that his employer's name was already on the bank statements and offered Ms. R his pay-slip and staff identification card. He also invited Ms. R to telephone his employer to confirm the required information and requested her to put the account number on a direct salary lodgment form so that he could get the required letter from his employer, however, Ms. R refused to comply with this request. The complainant requested Ms. R to outline the requirements for opening an account in writing, however she refused and indicated that the respondent did not provide written explanations. The complainant did not succeed in opening the account on this occasion and having expressed his dissatisfaction to Ms. R, indicated that he felt he was being discriminated against by the respondent. The complainant vehemently denied that he was abusive at any stage or that he had used the word "racist" during the course of his interaction with members of the respondent's staff. He then left Branch X and went to another branch of the respondent within a 500m radius where he succeeded in opening a Loyalty Current Account without experiencing any difficulties whatsoever. The only documentation that he was required to produce when opening the account in the latter branch was his passport and a utility bill. He was not requested to provide a letter from his employer and he contended that the information required by this branch for the opening of a Loyalty Current Account appeared to be consistent with the requirements that were advertised in the respondent's promotional literature.
1.5 The complainant claims that at no stage during the course of his dealings with officials at Branch X was he informed that this branch was implementing stricter than normal criteria for opening accounts as a result of fraudulent activity. The complainant contends that the account should have been opened on his first visit to Branch X as he had complied with the necessary requirements and he alleged that the additional requirements of a passport and a letter from his employer were requested purely because of his racial origin. He subsequently pursued a complaint with the Customer Relations Department of the respondent but he was not satisfied with the outcome of the investigation and referred further complaints to the Ombudsman for Credit Institutions and the Director of Equality Investigations.
2. Summary of Respondent's Case
2.1 The respondent denies any discrimination towards the complainant and claims that it is entitled, and indeed obliged, to take reasonable steps to ensure that it is compliant with its obligations under the Criminal Justice Act, 1994 with regard to procedures for the identification of customers when opening new accounts. It is further obliged to ensure that procedures are followed which guarantee the bank's own interests, particularly in circumstances where a specific branch has experienced fraudulent activity of any kind. The respondent's Branch X had experienced a very high level of fraudulent activity, especially with the presentation of fake and forged driving licences around September, 2003 and as a result imposed extra requirements internally at branch level for opening new accounts. Mr. S, Manager of Branch X in September, 2003, gave evidence regarding the difficulties that the branch had been experiencing with fraudulent activity at that particular time. Mr. S stated that Branch X is the respondent's busiest branch and that it experienced an inordinate amount of fraudulent activity compared to other branches and consequently, it was necessary to put additional measures in place to protect the interests of the bank and to comply with its obligations under the Criminal Justice Act, 1994. As a result of the difficulties with fraudulent activity the branch endeavoured to tighten up its procedures in relation to the opening of new accounts. Accordingly, the requirements that were imposed by Branch X in order to open a Loyalty Current Account that would entitle the customer to avail of free banking were passport identification, a recent utility household bill as proof of address, six months bank statements from a previous bank account and a letter from the customer's employer to confirm that the salary would be mandated to the new account. Mr. S stated that a passport was considered to be the primary form of identification and in light of the difficulties with fraudulent activity, members of staff working at Branch X, were instructed by management to request a passport as proof of identity wherever possible.
2.2 The respondent accepts that the complainant presented at Branch X on a number of different occasions in September, 2003 in an attempt to open a Loyalty Current Account in order to avail of free banking, however, it contends that on each of these occasions he did not have the required documentation to satisfy the branch's internal requirements and it was therefore not possible to open the account. The respondent accepted that the complainant was an existing customer of the bank and was the holder of two savings accounts which had been opened in 1998 and 1999, respectively. However, the respondent contends that the information and documentation that the complainant provided on opening these accounts was not sufficient to open a Loyalty Current Account as this information was in excess of five years old and did not comply with the money laundering requirements under the Criminal Justice Act, 1994. The respondent contended that a Loyalty Current Account offers a greater range of services than a savings account and it is also a money transmission account. These additional services include overdraft facilities, direct debits, laser cards, cheque books and cheque cards which may result in credit implications in the future for the financial institution concerned.
2.3 Ms. B, Senior Customer Adviser stated that she had a recollection of attending the complainant on one of the occasions that he attended Branch X in order to open the Loyalty Current Account. The complainant indicated that his reason for opening this account was to avail of free banking. However, he did not have all of the required documentation that was necessary to comply with the branch's internal requirements in order to open this account. In keeping with her normal practice in such situations, Ms. B attempted to explain to the complainant the branch's requirements for opening a Loyalty Current Account, namely that it was necessary for a customer to provide a passport, a utility household bill as proof of address, six months previous bank statements and a letter from an employer stating that the salary would be mandated to the account. The complainant became extremely irate and aggressive when Ms. B attempted to explain these requirements to him and he then left the branch. Ms. B stated that she was satisfied that she had clearly identified the necessary requirements to the complainant during the course of their conversation.
2.4 The complainant contacted the respondent's telephone account opening service and made a complaint about Branch X's requirement for a passport instead of a driving licence and he claimed that the account should have opened on his first visit to the Branch. When Branch X was made aware of this complaint on 11th September, 2003, Ms. R, Assistant Manager at Branch X, immediately contacted the complainant by telephone and explained that it was normal practice for staff within the branch to request a passport when opening new accounts for customers. Ms. R informed the complainant that the respondent would waive the requirement for a passport in this instance and informed him that the branch would accept his driving licence as a form of identification in order to open the Loyalty Current Account. During this telephone conversation Ms. R clearly outlined to the complainant the other requirements that were necessary in order to open the account and she specifically referred to the requirement for a letter from the employer as the complainant had indicated that he wished to avail of free banking. The complainant did not question the requirement for a letter from his employer at any stage during this conversation with Ms. R.
2.5 The complainant called to Branch X shortly after this telephone call with Ms. R on 11th September, 2003 and sought to open the account but he failed to produce the letter from his employer stating that his salary would be mandated to this account. Ms. R offered to take a photocopy of all of the documentation provided by the complainant at this meeting and to hold the documents on file until he obtained the letter from his employer, which would allow the respondent at that stage to open the new account. The complainant declined this offer and having indicated to Ms. R that staff members of the branch were racist, he left the premises and took all of the documentation away with him. The respondent accepts that the complainant subsequently went to another of its nearby branches and opened a Loyalty Current Account, however it submitted that on this occasion the complainant presented his passport as proof of identity. The respondent contends that the complainant was at all times treated in a professional and fair manner by its branch staff and denies that it acted in a discriminatory manner towards the complainant.
3. Preliminary Issue
3.1 The complainant in the present case also referred a complaint to the Ombudsman for Credit Institutions arising from his alleged treatment by the respondent. Both parties made submissions to the Tribunal, both in writing and at the hearing of this complaint, regarding the investigation that was carried out by the Ombudsman in this matter. I informed the parties that I would consider their respective submissions on this issue, however, I also indicated that the investigation I am carrying out on behalf of the Director in the present case is a totally separate and independent investigation from that carried out by the Ombudsman for Credit Institutions, and accordingly, that I am not bound by its findings.
4. Conclusions of the Equality Officer
4.1 I must first consider whether the complainant in this case, has established a prima facie case of discrimination. In order to do so the complainant must satisfy three criteria. (1) It must be established that he is covered by the relevant discriminatory ground i.e. in this case the race ground. (2) It must also be established that the specific treatment alleged by the complainant actually occurred and (3) it must be shown that the treatment of the complainant was less favourable than the treatment that would be afforded to another person in similar circumstances who was not covered by the discriminatory grounds referred to above. He must establish all of these facts if a prima facie case of discrimination is to be established. If there is a prima facie case of discrimination the burden of proof shifts to the respondent who must then rebut the case of the complainant if it is to fail.
4.2 With regard to the first of the criteria, evidence was adduced which confirmed that the complainant is originally from Nigeria and I am therefore satisfied that he is covered by the race ground. In relation to the second of the criteria outlined above, it is common case that the Loyalty Current Account was not opened for the complainant by Branch X, although the reasons propounded by the respective parties as to why the account was not opened are in dispute. Accordingly, I am satisfied that the complainant has satisfied the second of the criteria outlined above. In order to determine whether a prima facie case of discrimination 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.
4.3 At the outset of my deliberations, I consider that it is important to note that the primary reason the complainant sought to open a Loyalty Current Account with Branch X of the respondent in September, 2003 was in order to avail of exemptions from bank charges i.e. "free banking". In this regard, I note that the holder of a Loyalty Current Account with the respondent is entitled to avail of "free banking" subject to meeting certain qualifying criteria. For example, customers with an average cleared credit balance of more than €1000, customers that hold a mortgage with the respondent, customers with savings of €100k or more in the account or customers that have their salary mandated directly into the account are entitled to free banking. I am satisfied that in the present case the only means by which the complainant could qualify for free banking, when he initially presented at Branch X in September, 2003, was by virtue of having his salary mandated to the Loyalty Current Account. The complainant contends that the Loyalty Current Account should have been opened by Branch X on each of the three occasions that he presented there and he claims that the excessive demands made on him to produce additional documentation and identification were motivated by virtue of his racial origin.
4.4 I have taken note of the requirements to open a Loyalty Current Account that are documented at page 5 of the respondent's "Personal Banking - Making life easier, all day, every day" information leaflet (dated 10 July, 2003). These requirements are outlined as follows:
"To comply with legislation, customers who wish to open new accounts with ...... should provide
- A current passport or full driving licence, and
- A recent household bill, such as electricity, gas or telephone"
The complainant contends that the respondent refused to accept his driving licence as proof of identification and instead requested that he provide a valid passport, when the advertising leaflet clearly indicated that either of these documents would suffice. He also contends that in addition to the requirements outlined in the aforementioned information leaflet, that he was also requested to provide six months bank statements from a previous bank account and a letter from his employer confirming that his wages would be mandated to the account. The complainant further contends that the female bank official that attended him tried to dissuade him from opening the Loyalty Current Account and advised him to have his salary paid into his existing savings account.
4.5 It is not disputed by the respondent that the complainant was requested to provide his passport as proof of identification or that he was also requested to provide the aforementioned additional items of documentation. However, the respondent contends that the requirement for additional documentation arose as a result of a high level of fraudulent activity within Branch X and as a result of which it was necessary to implement standard additional requirements in that particular branch, over and above those outlined in its advertising literature, when opening new accounts for customers. The respondent has emphatically denied that the complainant was subjected to discriminatory treatment and contends that all of its customers, regardless of their racial origin, were obliged to comply with these requirements. Furthermore, the respondent contends that it was necessary to implement these additional measures in relation to the opening of new accounts within Branch X in order to protect its own interests and to comply with its obligations under the Criminal Justice Act, 1994. I consider that it is important to note at this stage that the respondent has not alleged or adduced any evidence whatsoever to suggest that the complainant was endeavouring to engage in fraudulent activity.
4.6 It is clear from the provisions of the Criminal Justice Act, 1994 that there is a strict obligation on financial institutions to take reasonable measures to establish the identity of persons for whom it proposes to provide a service in order to prevent and assist in the detection of money laundering. The Act also makes provision for the imposition of significant penalties, including a fine and/or imprisonment, on persons or financial institutions that are found to be in breach of its obligations in this regard. This legislation does not, however, explicitly state what may or may not represent reasonable measures to establish identity. In this regard, I have taken cognisance of the document entitled "The Criminal Justice Act, 1994 - Money Laundering - Guidance Notes to Credit Institutions" (May 2003 version) which is a publication from the Money Laundering Steering Committee (comprising of representation from various Government Departments and the Central Bank amongst others). At Section IV - paragraph 31 of this publication it is stated that "The best identification should be obtained from the person i.e. those that have been issued by reputable sources and that are the most difficult to obtain illicitly". At paragraph 45 it is stated that "The true name used should be verified by reference to a document obtained from a reputable source which bears a photograph and signature. Wherever possible a current valid full passport should be requested and copied". It is clear from these guidelines that a passport is considered to be the primary form of identification and that financial institutions are entitled to seek the provision of this document when opening a new account for a customer in order to comply with their obligations under the Criminal Justice Act, 1994.
4.7 The respondent has adduced evidence that staff working in Branch X were instructed wherever possible to obtain passport identification from customers when opening new accounts. This instruction was issued to staff as a result of the difficulties that Branch X had been experiencing with fraudulent activity within the branch. I find the evidence of Mr. S and Ms. R regarding these difficulties and the resultant internal initiatives introduced by Branch X when opening new accounts to be reliable and credible. Having regard to the aforementioned difficulties with fraudulent activity, I am satisfied that it was not unreasonable for the respondent in such circumstances to be extra vigilant and to implement additional measures in order to safeguard its own commercial interests and to facilitate compliance with its obligations under the Criminal Justice Act, 1994. I accept that the complainant was an existing customer and had established a commercial relationship with the respondent by virtue of the savings accounts that he already held. However, his personal circumstances had changed since these accounts were opened in 1998 and 1999, respectively. I note that the complainant furnished an asylum card issued by the Dept. of Justice, Equality and Law Reform as photographic identification when opening the savings account in 1998 and that the respondent had not previously been presented with either his passport or driving licence prior to his attempt to open the Loyalty Current Account in September, 2003. I am therefore satisfied that the respondent was entitled, and indeed obliged, in accordance with the provisions of Section 32(3)(a) of the Criminal Justice Act, 1994, to take appropriate measures to establish the identity of the complainant when he sought to open the Loyalty Current Account in September, 2003.
4.8 In view of the strict obligations that are placed upon financial institutions to comply with money laundering procedures under the Criminal Justice Act, 1994 and in light of the difficulties that Branch X was experiencing with fraudulent activity, I am satisfied that the initial request to the complainant to provide a passport was not motivated by his race or ethnic origin but was a standard requirement, routinely implemented by Branch X, that was applied to all customers regardless of their race, nationality or ethnic origins. I note from the evidence adduced that when the complainant made a complaint to the respondent regarding this requirement, that management within Branch X decided to waive the requirement for a passport. The complainant was subsequently informed of this decision by Ms. R, Assistant Manager, on 11th September, 2003 and was advised that the branch would make an exception to its established practice, in this case, and accept his driving licence as a means of identification. I consider that had the respondent wished to discriminate against the complainant on the grounds of his race, that it would not have subsequently waived the request for passport identification. I therefore find that the complainant was not subjected to less favourable treatment on the grounds of his race or ethnic origin as a result of the respondent's initial request to provide his passport in order to open the Loyalty Current Account.
4.9 I also note that the complainant contends that when he visited Branch X on 9th September, 2003 he was informed by the male official that attended him that it would be necessary to provide a passport as his savings account was less than eight years old. This male member of staff did not attend the hearing to give evidence regarding this issue and the respondent contends that, despite its best efforts, it was unable to successfully identify the name of the official that attended the complainant on this occasion. The respondent does not dispute the complainant's evidence on this issue and it submitted that there is a perfectly rational explanation as to why a member of staff may have made such a request of the complainant. It submitted that the Criminal Justice Act, 1994 came into effect in May, 1995 and that prior to this date there existed a group of account holders' in respect of whom the obligations to establish identity in accordance with the provisions of the Criminal Justice Act, 1994 would not have applied. The respondent submitted that a credit institution was not obliged to retrospectively establish the identity of persons that were already customers at this juncture, and given that the savings accounts which the complainant held with the respondent were less than eight years old in September, 2003 (i.e. they were opened in 1998 and 1999, respectively), the respondent was obliged to take appropriate measures to establish his identity in accordance with its obligations under the Criminal Justice Act, 1994. I am satisfied that the explanation offered by the respondent in this regard is plausible and that the request made by the male member of staff on 9th September, 2003 was consistent with the internal policy that Branch X was implementing at that particular time with regard to the identification of customers and was also in compliance with its obligations under the Criminal Justice Act, 1994.
4.10 I will now deal with the other requirements, namely the request for a letter from his employer and six months bank statements, that the complainant contends should not have been requested from him in order to open the Loyalty Current account. The respondent contends that a person who wished to avail of free banking by virtue of having their salary mandated to the account was required by Branch X to provide four items of information, namely a passport, a utility household bill, six months bank statements from a previous bank account and a letter from an employer confirming that the salary would be mandated to the account. The complainant contends that he should not have been requested to provide a letter from his employer or six months bank statements from a previous account as the requirement for these documents was not included in the respondent's advertising literature. I note that there is a clear conflict of evidence between the parties regarding the date on which the complainant was informed by staff within Branch X about the requirement to provide the letter from his employer. The complainant, on the one hand, contends that he was not informed of this requirement until his meeting with Ms. R at Branch X on 11th September, 2003 whereas the respondent, on the other hand, contends that the complainant was made aware of this requirement during his initial meeting at the branch with Ms. B on 8th September, 2003. Having carefully considered the evidence of both parties in this regard, I am satisfied, on the balance of probabilities, that the complainant was initially made aware of this requirement by Ms. B during their initial conversation at the branch on 8th September, 2003 and again by Ms. R during their telephone conversation on 11th September, 2003.
4.11 I am satisfied from the evidence adduced that the complainant did not have an established credit history with the respondent prior to September, 2003. I note that the complainant held two separate savings accounts with the respondent at this time, however his salary was being mandated into an account which he held with a different financial institution. I am satisfied that in such circumstances, the only means by which the complainant could qualify for free banking at that particular juncture on the Loyalty Current Account that he sought to open at Branch X, was by virtue of having his salary mandated to this account. The respondent contends that Branch X required all customers in such circumstances to provide a letter from their employer confirming that their salary would be mandated to the account and six months bank statements from a previous account. Having considered the evidence presented, I am satisfied that the requirements imposed upon the complainant were standard requirements which were routinely imposed by Branch X on all prospective customers that were in the same circumstances as the complainant and who sought to avail of free banking on a Loyalty Current Account.
4.12 I note that the complainant was successful in opening a Loyalty Current Account at another nearby branch of the respondent and also that the internal requirements imposed by Branch X for opening a Loyalty Current Account were not consistent with the requirements contained in the respondent's advertising brochure. It is therefore understandable how the complainant interpreted the request for additional information as an attempt by the bank to make it unduly difficult for him to open the account. In this regard, I am of the opinion that it would have been desirable had Branch X displayed information signs or some other form of notification within the branch to inform customers that it was implementing different account opening procedures than that outlined in its advertising literature. It would also have been of benefit if the respondent had included a warning in its advertising literature to alert potential customers that the requirements for opening a new account may differ from branch to branch.
4.13 However, notwithstanding the aforementioned observations, I accept that the requirements for opening new accounts that are outlined by any financial institution in its advertising literature are the basic minimum requirements to which a customer must comply in order to open an account. I am satisfied that the circumstances were different when the complainant opened the account with another of the respondent's branches, given that he provided his passport as a means of photographic identification when opening the account at this branch, and also in light of the fact that Branch X was implementing stricter than normal criteria for the opening of new accounts. I am satisfied that individual branches within a financial institution are not precluded from applying additional or more stringent criteria from each other or from the criteria outlined in their advertising literature when opening new accounts for customers, especially in circumstances where these additional measures are introduced in order to comply with the provisions of the Criminal Justice Act, 1994 and also as a means of safeguarding the commercial interests of a particular branch. The imposition of any such additional requirements by an individual branch cannot be construed in a discriminatory manner if they are applied uniformly to all customers that are in similar circumstances. I am satisfied in the present case that Branch X had legitimate reasons for imposing stricter than normal criteria for the opening of new accounts and that these criteria were applied to all customers irrespective of their race or ethnic origins.
4.14 On conclusion, having deliberated on the totality of the evidence before me, I am satisfied that a person of a different race, who was in the same circumstances as the complainant, and who was seeking to open a Loyalty Current Account in order to avail of free banking with Branch X of the respondent would also have been subjected to the same documentary requirements as the complainant. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the race ground.
5. Decision
5.1 The complainant, having failed to establish a prima facie case of discrimination on the race ground cannot succeed in his complaint and accordingly my finding is for the respondent in this case.
________________
Enda Murphy
Equality Officer
7th January, 2008