THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2011
Decision DEC – S2015 – 002
PARTIES
Mr A.
-v-
A Bank (represented by Mr Patrick Rooney B.L., instructed by the respondent’s in-house legal service)
File Reference: ES/2013/0090
Date of Issue: 9th February 2015
Keywords: S. 5Equal Status Acts – services must be available to the public or a section to the public – mortgage product at centre of complaint a staff product – terms and conditions of employment – no jurisdiction under Equal Status Acts – misconceived – S. 22
1. Claim
1.1. The case concerns a claim by Mr A, that a bank discriminated against him on the ground of disability contrary to Section 3(2)(g) of the Equal Status Acts 2000 to 2011, in terms of failure to provide him with a preferential interest rate on his mortgage, which is available to the staff of that bank, because he had to retire on the respondent’s income continuance scheme due to his disability.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 6 August 2013. A submission was received from the complainant on 4 September 2013. No submission was received from the respondent. On 5 December 2014, in accordance with his powers under S. 25 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 15 January 2015. Additional evidence was requested from the respondent on 7 January 2015, to be presented at the hearing. Also on 7 January 2015, I wrote out to the complainant to alert him to concerns I had regarding the Tribunal’s jurisdiction in this matter. A preliminary submission in which the respondent argued the Tribunal’s lack of jurisdiction in this matter was emailed to the Tribunal on the day of the hearing, and so shortly before the hearing was due to start, that I did not gain sight of it until after the hearing. In it, the respondent also argued that even if jurisdictional issues did not apply, the complaint would be time-barred pursuant to S. 21 of the Acts. This submission was forwarded to the complainant, together with other documents, by post on 16 January 2015, with a request to revert by 6 February 2015. The complainant contacted the respondent directly by email for clarification on some points, on which he copied the Tribunal. This clarification was provided by the respondent on 21 January 2015. On 29 January 2015, the Director delegated his powers pursuant to S. 22 to me. No further communications were received from either party by the deadline of 6 February 2015.
2. Summary of the Complainant’s Written Submission
2.1. Mr A. submits that he joined another bank in May 1983, after fifteen years with a major retail bank. In May 1985, he was diagnosed with Multiple Sclerosis. As his condition progressively deteriorated, he was forced to give up work and draw on the respondent’s income continuance plan. He submits that he remained on the staff.
2.2. In 1983, when he joined the bank, he bought a home availing of his employer’s preferential mortgage interest rate for staff: the first £15,000 at 3% and the remaining balance at 4%, both at fixed rates. He states that these staff facilities and other staff benefits such as bonuses continued as normal after his original employer was first taken over by a foreign, and later the bank who is the respondent in this case. Mr A. states that he never worked for either of these banks. However, he states clearly that he considers himself to be a staff member, and that he will remain one until his retirement in October 2014.
2.3. In 2007, the complainant’s condition had progressed to such an extent that it became necessary to relocate from his two-storey home to a bungalow more suited to his accessibility needs. The complainant states that although he and his wife normally bank with the local branch of another major bank, they approached one of the respondent’s local managers, on the ground that the complainant considered himself a staff member of the respondent, to avail of the preferential mortgage rate for staff.
2.4. The sale of the complainant’s home proved difficult. The complainant availed of a bridging loan from the respondent in order to be able to purchase the bungalow. After a delay of five years, his former home finally sold for less than half of the original valuation.
2.5. The complainant also submits that the respondent put pressure on him regarding the repayment of the monies advanced, even though the complainant asserts that he never missed a repayment. It is his contention that if he had been a working member of staff instead of drawing down payments on the respondent’s Income Continuance policy, he would not have been treated in this manner and neither would the staff mortgage rate have been a problem. He contends that this amounts to discriminatory treatment on the ground of disability.
3. Summary of the Respondent’s Written Submission
3.1. As noted in paragraph 1.2 above, the respondent did not provide a written submission to the Tribunal in advance of the hearing.
4. Conclusions of the Equality Officer
Preliminary issue: Jurisdiction
4.1. The preliminary issue for decision in this case is whether the Tribunal has jurisdiction to investigate the complaint on hand. On 7 January 2015, I wrote to the complainant as follows:
I have now had an opportunity to study the papers on file in greater detail, and a concern has arisen that you may have brought your complaint under the wrong Acts and that I may have to decline jurisdiction in this matter due to misconceived jurisdiction. Your complaint appears to be that due to your disability, your employer did not let you avail of a preferential mortgage rate for their staff. From this I understand - but will make further enquiries from the respondent at the hearing - that the staff rate is essentially a benefit arising out of the employment relationship. In fact, you seem to say as much in your submission. This would be a matter for investigation under the Employment Equality Acts.
S. 5 of the Equal Status Acts essentially defines the scope of the Acts, in the disposal of goods and services, as those available "...to the public generally or a section of the public... [Emphasis added]. A staff rate on a financial product would by definition not be available to the public or even just a section of the public. So in order to succeed with your claim under the Acts, you would have to demonstrate that the rate you were given was less favourable than to a member of the public without a disability, or with a different disability than yours.
I will look into this question as a matter of priority at the hearing on Thursday next.
4.2. At the hearing of the complaint, there was no dispute that the respondent bank considered Mr A. a member of its staff, who availed of its income continuance scheme, until his actual retirement in October 2014. The complainant accepted in his evidence that he did not have a comparator from the general public, either a non-disabled person or a person with a different disability, who would have received a more favourable mortgage rate than himself.
4.3. The respondent had prepared, at my request, copies of the staff policy which govern staff preferential access to the respondent’s financial products. These include a whole range of commonly used financial products in addition to mortgages, such as current accounts, savings accounts and credit cards. The current account, cheque/debit card, and savings account can be availed of from the start of someone’s employment, whereas term loans, car finance and mortgage loans have a service requirement of one year. According to the sample contract of employment which the respondent submitted at my request, having a current with the bank is a mandatory condition of employment for all employees. In my opinion, this makes it clear that access to the staff financial products is linked to the employment relationship and is in fact part of the terms and conditions of employment of the respondent bank. This is further underlined by a paragraph in the “Staff Banking Credit Policy” document which states under the heading “If you leave the company”:
- · If you leave the company, for whatever reason, you must arrange to convert your facilities to normal customer accounts.
- · You can keep your staff entitlement on your account if you retire.
4.4. In light of the evidence that the staff preferential mortgage rate, which the complainant complains of having been deprived of by the respondent, is in fact part of the terms and conditions of employment of staff of the bank, I find that the respondent’s alleged conduct must be rated as possibly less favourable treatment with regard to the complainant’s terms and conditions of employment, and that this case ought to have been investigated under the Employment Equality Acts 1998-2011. It is not a facility which is available to the public, and therefore I am precluded from investigating it under the Equal Status Acts 2000-2011.
4.5. A claim which is incorrectly based in law is called misconceived. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, this complaint is similarly misconceived because of the reasons set out in the preceding paragraphs.
5. Decision
5.1 Based on all of the foregoing, I find, pursuant to Section 22(1) of the Equal Status Acts, that the within complaint was brought under the wrong statute and is therefore a matter of misconceived jurisdiction, and that I have no jurisdiction to investigate the matter.
5.2 In accordance with section 22(2) the complainant may appeal against this decision in the Circuit Court on notice to the Director specifying the grounds of the appeal. Such an appeal must be lodged no later than 42 days after the dismissal.
______________________
Stephen Bonnlander
Equality Officer
9 February 2015