THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC - S2011 - 028
PARTIES
Ms Bernadette Oliver (represented by Ms Davnett O'Driscoll, Hayes Solicitors)
and
Permanent TSB Ltd
(represented by Ms Valerie Neiland, Solicitor, Irish Life in-house legal service)
File References: ES/2009/0012
Date of Issue: 18th July 2011
1. Claim
1.1. The case concerns a claim by Ms Bernadette Oliver that Permanent TSB Ltd discriminated against her on the ground of gender contrary to Section 3(2)(a) of the Equal Status Acts 2000 to 2008, in terms of refusal to provide a financial service within the meaning of S. 2 of the Acts.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2008 to the Director of the Equality Tribunal on 29 January 2009. A submission was received from the complainant on 9 April 2010. A submission was received from the respondent on 4 June 2010. On 22 November 2010, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 2 February 2011. Additional evidence was requested from the respondent at the hearing and received on 29 March 2011. The last piece of correspondence relating to the complaint was received on 4 May 2011.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that in late autumn 2008, she called to a Dublin car dealership to purchase a new car. The complainant traded in her old car, and paid an additional deposit on the new car she had selected. The financing was an arrangement whereby 50% of the price of the car had to be paid outright (which was covered by the trade-in and the deposit) and 50% would fall due two years later. This finance arrangement was underwritten by the respondent.
2.2. The complainant was subsequently informed by the staff at the car dealership that Permanent TSB would not underwrite the finance arrangement unless her husband was joined to it. According to the complainant, representatives of the respondent only told her that the finance arrangement was refused because she did not meet certain criteria, without elaborating on same. When the complainant's husband was joined to the arrangement, finance was advanced.
2.3. The complainant contends that the respondent's refusal to explain their loan criteria to her, and the respondent's insistence that her husband be joined to the finance arrangement, is directly and indirectly discriminatory on the ground of gender.
3. Summary of the Respondent's Written Submission
3.1. The respondent states that it is the wrong respondent to have a complaint directed against under the Acts, and states that it is the car dealership who is the service provider within the meaning of the Acts, as it acts as an agent for the respondent.
3.2. With regard to the substantive case, the respondent denies discriminating against the complainant. It states that the car dealership provided it with information that the complainant was retired, and that this was not sufficient to underwrite the finance arrangement, as it did not provide an accurate enough picture of her financial position. The respondent was subsequently informed that the complainant was in receipt of the State pension, and that her husband received a full Garda pension.
3.3. Subsequently, the respondent advised the car dealership that the complainant's husband would need to be added to the arrangement. The respondent based this on an assessment of the applicant's ability to repay the requested loan, the risk of over-indebtedness and the consequent risk of default, undertaken in accordance with its Finance Credit Policy. The respondent states that it took the view that it was an excessive risk to require a person whose only disclosed source of income was a State pension of then €210 per week, approximately, equating to a yearly income of approximately €11,000, to repay a loan of over €11,000 within two years.
3.4. The respondent states that it sought to add the complainant's husband as a joint hirer to the agreement because of his substantial Garda pension. It denies that the complainant's gender was a factor in the making of these decisions.
3.5. The respondent further denies that it refused to give the loan to the complainant. It requested the addition of the complainant's husband as a joint hirer, and once this was completed, the loan was advanced.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the respondent is correctly named in this complaint, and if so, whether it discriminated against the complainant on the ground of gender within the meaning of the Acts when it requested that her husband be joined to her car finance application before approving same.
4.2. With regard to the preliminary issue raised by the respondent, I am satisfied that they were the provider of the financial service within the meaning of S. 2 of the Acts. It was the respondent who made the decisions about advancing the loan, who ultimately provided the finance, and who is the party to the credit agreement. Therefore, I am satisfied that the car dealership was only the respondent's agent within the meaning of S. 42 of the Acts, and that their role was to function as a conduit of information between the complainant and the respondent. Accordingly, I am satisfied that the respondent is correctly named in this complaint.
4.3. 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 she can rely in asserting that prohibited conduct has occurred in relation to her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
4.4. In order to establish a prima facie case of direct discrimination on the ground of gender under the Acts, the complainant would have to show that a man has been, or would be, treated more favourably in a comparable situation. The complainant submitted that her comparator in this case should be her husband, and that she has discharged this burden of proof. I can not accept this argument, for two reasons: Her husband was only the co-signer of the loan in the case on hand, he did not take out a loan himself. Second, her husband is in receipt of a full garda pension. The appropriate comparator for the complainant, that is, a man in a comparable situation, would be a man who is only in receipt of the State pension. It would then be for the complainant to show that such a man would have been issued a loan of the size she had applied for on that income, or that the respondent would not have requested the man's partner or spouse to co-sign the loan agreement.
4.5. The complainant did not adduce any such evidence, and accordingly, her complaint of direct discrimination on the ground of gender must fail.
4.6. In the alternative, the complainant also sought to argue indirect discrimination. Indirect discrimination is defined in S. 3(1)(c) of the Acts as occurring "where an apparently neutral provision puts a person referred to in any paragraph of S. 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 this aim are appropriate and necessary".
4.7. It is the complainant's argument that a higher proportion of women than men require a co-signatory on their loans, and that a higher proportion of men co-sign the loans of women. It was argued that this is discriminatory on the ground of gender and puts women applicants at a particular disadvantage.
4.8. The respondent argued that loan decisions were made solely on repayment capacity and risk assessment, and that the gender of the applicant played no part in this decision. In support of their position, they provided the following figures for loan accounts with two named parties:
Male % Female %
First named party 3,293 46.74% 3,752 53.26%
Second named party - male 1,035 31.43% 2,764 73.67%
Second named party - female 2,258 68.57% 988 26.33%
From these data submitted, I am satisfied that the policy the respondent operates to mitigate credit risk is not discriminatory on the ground of gender. The differential between men and women who are required to have a co-signatory on their loan application is not significant, and almost in line with the natural distribution of men and women within the overall population. There is nothing to suggest that the respondent requests significantly more women than men to provide a co-signatory on their credit agreement. Similarly, in terms of the gender of the co-signatory, I am satisfied that the figures are not in any way indicative of a presumed policy on part of the respondent to accept only men as co-signatories, as 68.57% of all loan applications co-signed for men are co-signed by a woman.
4.9. Accordingly, I am satisfied that the complainant has not succeeded in establishing a prima facie case that she was subjected to indirect discrimination on the ground of her gender, and that her complaint must therefore fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that Permanent TSB did not discriminate against Mrs Bernadette Oliver on the ground of her gender in the provision of financial services, either directly or indirectly, pursuant to S. 3(1) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
18 July 2011