DEC-S2015-020

Equal Status Acts 2000 to 2012

DECISION NO: DEC-S2015-020

Kevin Stanley

-v-

Allied Irish Banks plc

(Represented by Gemma Carroll B.L. instructed by AIB Dispute Resolution Unit)

File No. ES/2013/0027

Date of Issue: 24 November 2015

Keywords Equal Status Acts 2000 to 2011 – Discrimination - Disability

1 Delegation under the Equal Status Acts 2000 to 2011

1.1 The complainant referred his claim against Allied Irish Banks plc under the Equal Status Acts on 22 March 2013. On 5 December 2014 in accordance with his powers under section 75 of the Employment Equality Acts, 1998 - 2011, the Director of the Equality Tribunal then delegated the case to me, Hugh Lonsdale, 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 which date the investigation under section 25 commenced.

1.2 Written submissions were received from both sides and I proceeded to a hearing on 21 January 2015 and final correspondence was received on 5 February 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2 Complainant’s Submission

2.1 The complainant submits that at the end of 2011 a debt management agent he had been dealing with in relation to a loan ceased trading. He then dealt with the respondent directly in relation to the loan. He submits they sent several letters asking him to contact them by phone.

2.2 The complainant submits that in August 2012 he informed the respondent that he was deaf and could not use the phone. He then asked if communication could be carried out by email but on 10 January 2013 the respondent rejected email communication because of data protection concerns. The complainant submits this amounts to a lack of reasonable accommodation and discriminatory treatment as non-deaf people can resolve their issues through telephone conversations which he could not. He contends that emails would have been the best way for him to do his business with the respondent but this option was rejected and he had to resort to unreliable letter communication.

2.3 The complainant submits the respondent’s unreasonable attitude to his disability resulted in him being threatened with legal action. He also submits that he had dealings with other financial bodies and communication with them was made accessible for him, usually through emails.

3. Respondent’s Submission

3.1 The respondent submits that on 23 September 2008 the complainant took out a loan with the respondent and he went into arrears at the end of 2010. They wrote a number of letters asking him to contact them but the means of contact was not specified. In two of the letters telephone was one of two options presented.

3.2 Initially the complainant corresponded with them by letter. It was on 31 October 2012 that the complainant first asked the respondent if he could use email communication to correspond with their solicitors. They decided to take no further action in relation to the loan until the situation had been investigated. On 10 January 2013 the respondent informed the complainant they would be unable to communicate with him by email because of data protection issues. Subsequently, on 28 March and 2 April 2013, they wrote to him offering the facility of encrypted email but this was not accepted by the complainant.

3.3 The respondent submits that email is not usually offered to any customer, regardless of their status. He could have continued to communicate by letter but the complainant said this was unreliable, without giving any reasons. The respondent submits that the complainant received all letters sent by the respondent.

4. Findings and Conclusions

4.1 I have to decide if the complainant was discriminated against in accordance with the Equal Status Acts on the grounds of disability. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

4.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2) provides that:“as between any two persons, the discriminatory grounds ...are ...(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”). The complainant is deaf and contends that as he could not conduct his business with the respondent by phone he should have been allowed to conduct his business in a way that he considered was closest to the ease and immediacy of communication by telephone; for him this was email.

4.3 The complainant dealt with a debt management agent until they went out of business and then he dealt with the respondent directly. The respondent contends that the complainant appeared happy to conduct his business by letter. It was not until they received a letter from him on 7 September 2012 that he informed the Insolvency and Debt Recovery Unit that he was deaf. However, the letter did not request any alternative form of communication. In a subsequent letter dated 23 October 2012 the complainant repeated that he was deaf and unable to communicate by telephone and claimed that the respondent was in breach of the Equal Status Acts by failing to provide him with reasonable accommodation. The respondent took this to be a complaint and put any proceedings against the complainant on hold but made no reference to communications issues. On 31 October 2012 he sent an email to the respondent’s solicitors asking them to communicate with him by email.

4.4 The complainant wrote to the respondent on 7 January 2013 and stated “As you know I am deaf and cannot hear the telephone. I do have the frustration with the recent communication with AIB. It would help if there were email correspondence. I would be obliged if you could consider same”. The respondent replied by letter on 10 January 2013 and included the following: “Unfortunately we cannot correspond through email as this can present issues with customer security along with Data Protection issues”. The complainant was also told in a letter of 18 February 2013 that his letter of 10 January 2013 had been passed on for investigation. This letter was the notification sent by the complainant to the respondent informing them that he considered he had been discriminated against by them and asking for a response. Then on 28 March 2013 and again on 2 April 2013 the complainant was offered use of the respondent’s ‘Encrypted Mail Service’. The complainant did not respond to this offer. At the hearing he gave evidence that he did not respond for two reasons; firstly, that the respondent had not explained what the ‘encrypted mail service’ was and secondly he had made his claim to the Equality Tribunal on 22 March 2013 and hoped that his issues might be resolved through mediation.

4.5 At no time was the complainant required to contact the respondent by phone. It was one of the options open to him and I am satisfied that is the way it was presented by the respondent. The complainant gave evidence that the respondent should have known of his deafness from previous dealings with them. Also, that as soon as he informed them of his deafness they should have provided him with reasonable accommodation that would have been as close as possible to communicating with the respondent by telephone, which was not possible for him because of his deafness. The respondent gave evidence at the hearing that the complainant’s previous dealings with them by email, in 2009, had probably been with his branch. The Insolvency and Debt Recovery Unit were not aware the complainant was deaf until he informed them. When he did ask to use emails this was rejected for security and data protection issues. The complainant rejected this as being unreasonable because he was communicating with other financial institutions via email. However, he had sent notification to the respondent and was told his complaint was being investigated and he was subsequently offered the use of their ‘Encrypted Mail Service’. The respondent gave evidence at the hearing that this was a service provided to some of their overseas customers. The complainant decided not take up this offer.

4.6 I have looked closely at all the evidence given in written submission and verbally at the hearing, and considered the timelines of the events. The respondent only offered their ‘Encrypted Mail Service’ after they received the complainant’s notification of the possibility of him making a claim under the Equal Status Acts. The respondent contends they were unaware of why the complainant needed any reasonable accommodation before they received this notification.

4.7 Section 4 (1) of the Equal Status Acts states: “discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” As he could not deal with the respondent by telephone the complainant wanted to conduct business with them with what he considered the next most immediate form of communication; email. He contends the respondent was slow in dealing with his request. However, although he informed them that he was deaf in September 2012, it was not until the end of October 2012 that he asked them to communicate with him via email. This request was refused for security and data protection reasons. The complainant only clarified his request in the notification he sent the respondent on 10 January 2013. Subsequent to which they offered him their ‘Encrypted Mail Service’

4.8 The respondent only made this offer after the complainant made it clear that he was considering making a claim under the Equal Status Acts. However, I do not consider that the complainant has previously drawn a direct connection between his deafness and his desire to do business through email. The complainant argued at the hearing that the respondent should have been aware of his situation and been proactive in looking at means of communication that would be closed to telephone calls than letters. However, I accept that before he sent the notification they had no reason to consider such an alternative. Also, there had been letter correspondence between the parties and the complainant gave no satisfactory reason why he decided this was unreliable.

4.9 The burden of proof is set out in Section 38A (1) which provides:

"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

4.10 Given his disability, I understand the complainant’s desire to communicate with the respondent by email. When he made this clear to them they initially refused his request for data protection reasons. Subsequently the complainant was offered access to an encrypted email service, which he rejected. I conclude that the respondent was slow in dealing with the complainant’s request but, in the circumstances of this case, I find this does not amount to discrimination and that the complainant was not denied reasonable accommodation.

5. Decision

Accordingly I find in accordance with section 25 (4) of the Acts that:

· the complainant was not discriminated against on the disability ground pursuant to sections 3(1) and 3(2)(a) of the Equal Status Acts, and

· that the complainant was not refused reasonable accommodation

___________________

Hugh Lonsdale

Equality Officer

24 November 2015