THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2010-001
Parties
Margaret O'Keeffe
and
Irish Life & Permanent PLC t/a Permanent TSB
(Represented by David Keane, B.L.)
File Ref: ES/2007/110
Date of Issue: 6th January, 2010
Keywords:
Equal Status Acts 2000-2008 - Indirect discrimination, section 3(1)(c) - Gender ground, section 3(2)(a) - Disposal of goods and provision of services, section 5(1) - Temporary worker - application refused for credit card.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 18th October 2007. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 on the 11th December 2008. The hearing of the case took place on the 1st October 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Ms. Margaret O'Keeffe, where she claims that she was discriminated against by the respondent, Irish Life & Permanent PLC t/a Permanent TSB, on the gender ground in terms of sections 3(1)(c) and 3(2)(a) and contrary to section 5(1) of the Equal Status Acts in relation to the respondent's refusal of her application for a visa card because she was not working in permanent employment.
3. Summary of the Complainant’s Case
3.1 The complainant, Ms. Margaret O'Keeffe, claims that she applied to the respondent for a permanent TSB ICE Visa Card via the internet in and around July 2007. She claims that she was a temporary worker at the time, employed through a (named) employment agency. She claims that she filled out the application form online and subsequently was asked for, and sent on, additional information to the respondent including a letter from the employment agency detailing her employment details. Ms. O'Keeffe claims that on the 4th September 2007 she received a letter from the respondent advising her that her application for a credit card was not accepted. She claims that she telephoned the respondent and was informed that although she had an excellent credit rating and a regular income she was being refused a credit card because she did not work on a permanent contract basis.
3.2 The complainant explained that she returned to Ireland from the United Kingdom in late 2006, where she opened an account with the respondent and had a regular permanent income coming into this account on a monthly basis prior to July 2007 and an additional sum of money once she started to work in Ireland from then on. She claims that she held a credit card with a bank in the United Kingdom however, as she was living in Ireland, she decided to apply for a credit card to the Permanent TSB as this was the bank that she had been banking with. She claims that both herself and her husband would have had an excellent credit rating and the bank should have noted that. She claims that she chose to register with the employment agency for work as an office temporary worker in early July 2007 and has a constant flow of work since then.
3.3 The complainant claims that the respondent refused to accept her application for a credit card on the basis that she did not have a permanent contract of employment. She claims that the criteria for granting a visa card therefore, is indirectly discriminatory against her because, as a woman, she is more likely to work on a temporary basis rather than on a permanent basis, in order to balance work with family commitments. The complainant maintains that the respondent should assess applications on the customers ability to meet repayment and their credit rating.
3.4 Ms. O'Keeffe claims that from her experience working in an office administration environment in the United Kingdom she had first hand experience dealing with temporary office staff, and these staff were predominately if not always female.
4. Summary of the Respondent’s Case
4.1 The respondent acknowledged that it received the application for a TSB Ice visa card from the complainant via the internet and it produced a copy of the internet application form as evidence. It claims that as part of its prudent assessment of any credit card application, Permanent TSB considers the applicants credit history or credit rating and the likelihood of the applicant to repay the credit in the future. It claims that Ms. O'Keeffe had indicated in her visa application form that she was in her current employment for just one month, consequently, it wrote to the applicant and requested her to supply information from her employer in relation to the permanency of her employment. The complainant wrote back and enclosed a letter from the recruitment agency which stated that Ms. O'Keeffe was registered with it since July 2007, and that "This role has the potential to go permanent" and "We will continue to facilitate Margaret with work for as long as she is available". The respondent claims that this failed to confirm the permanency of Ms. O'Keeffe's working arrangement and it refused to grant the visa application accordingly.
4.2 The respondent said it has to evaluate each visa application received based on a set of criteria on an assessment of risk to it including the applicant's employment position, income levels, frequency of payment and credit rating so as to determine if a visa card could be granted and the credit limit to be allowed. It claims in the complainant's case that she was not employed by the named agency at the time, she was only registered with it for work for when it became available. The respondent claims that there was no legal entitlement on the agency to provide Ms. O'Keeffe with regular, constant work as she did not have a contract on that basis. The respondent claims that it has to consider the risk in each situation and accordingly in the complainant's situation where she had a regular income, but no legal entitlement to work in the future against a less risky comparator where the applicant would have a constant permanent income which is a binding contract in law.
4.3 The respondent claims that its visa application form sought information about whether the applicant was a permanent worker, on a full or part time basis, or a non-permanent worker. It claims that as part of its prudent assessment this information is taken into account to determine whether the applicant has the ability to meet future repayments. It claims that it is normal practice for the respondent to establish whether the applicant can meet future repayments, and it denies any discrimination on the gender ground.
4.4 The respondent disputes the claim Ms. O'Keeffe made that the majority of workers on temporary work were women workers. It claims that no evidence was presented to support that position and from its anecdotal evidence it was of the opinion that in 2007 when one considers the IT, Construction, Technical and Agri-business sectors, which would be of a temporary/contract working arrangement, the majority of these workers were male rather than female. Accordingly, it disputes the claim made by the complainant particularly since no evidence was presented to support her claim.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. 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, 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.
Indirect Discrimination - Gender Ground
5.2 The complainant submitted that the respondent’s stated practice of treating applicants for its credit card differently when they are not in permanent employment is indirectly discriminatory against people not in permanent employment and as women are more likely not to be in permanent employment that this is “an apparently neutral provision” which would put women at a particular disadvantage compared to men. The complainant claims that this is not a justifiable condition for the assessment of risk 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 visa card applications. In this regard, I note the evidence of the respondent that the need for the applicant to be in permanent employment is a main factor when assessing a visa card application. I have also noted that they claim that this credit assessment is based primarily on evaluating risk to ensure that the individual has the capacity to meet the repayments in the future.
5.3 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 permanent employment places her, a women, at a particular disadvantage compared to men in terms of the respondent’s decision to refuse her request for a credit card.
5.4 In considering this issue further, I have noted the complainant has not presented any evidence in support of her position that a higher proportion of women were likely to have worked as agency/contract workers at that time, not to mind that a higher proportion of women are likely to have worked on temporary contracts. In this case, I am satisfied that the correct category of workers that the complainant must show are at a particular disadvantage, is not limited to just contract/agency workers but rather to the broader temporary category workers, as per the respondents assessment criteria. Again, no evidence was presented to support the claim that a significant proportion of workers in this category of worker in 2007 were women.
5.5 I have noted the respondent's submission that it would rely on the defences of section 3(1)(c) in relation to objective justification of its policy and section 5(2)(d) in relation to the need for the respondent to make an assessment of risk, should I find that the complainant establish a prima facie case of discrimination. However, based on the evidence presented, I am satisfied that the complainant has failed to establish that the “apparently neutral provision” i.e. the requirement to be in permanent employment has put her at a particular disadvantage on the grounds of her gender. Accordingly, I find that the complainant has failed to establish a prima facie case of indirect discrimination in terms of Section 3(1)(c) of the Equal Status Acts, 2000 to 2008.
6. Decision
In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of sections 3(1)(c) and 3(2)(a) of those Acts. Accordingly, I find in favour of the respondent in this case.
______________________
James Kelly
Equality Officer
The Equality Tribunal
6th January 2010