ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006239

Parties:

Complaint(s):

Date of Adjudication Hearing: 15/08/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint under Section 21 of the Equal Status Act was made by a customer against a retail bank. The Complainant submitted a date of the 17^th of June 2016 as the date of the most recent act of discrimination. The complaint was received by the Workplace Relations Commission on the 11^th of November 2016.

Preliminary Matter:

At the opening of the Hearing the Respondent's representative stated that the Respondent had not received an ES 1 Form from the Complainant. The Complainant stated that he sent a form to the Respondent, although he provided no evidence to support his contention.

Section 21 (2) of the Act states;

(2) Before seeking redress under this section the complainant —

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of —

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.

Notwithstanding the above Section 21 (3) states;

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly.

  (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including —

                (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in                which the prohibited conduct occurred, and

                (ii) The extent of any risk of prejudice to the respondent’s ability to deal adequately with                the complaint

Whether the Respondent received an ES 1 Form or not I do not believe the absence of notification prejudiced the Respondent's ability to deal adequately with the complaint and relying on Section 21 (3) (a) (ii) I am content to move on and investigate the complaint.

Summary of Complainant’s Case:

The Complainant provided a detailed written submission.

The Complainant submitted that he had been discriminated against by the Respondent, the Respondent's employees and a branch run by the Respondent.

The Complainant submitted that when he opened a Seven-year Fixed Term Growth Deposit Account (the deposit account) on 26^th May 2015 at one of the Respondent's branches in Dublin City everything was done in a rush by the bank official dealing with the matter. The Complainant submitted that the official pointed his fingers on the document and said, "Tick here", "sign here", etc. and did not provide details. The Complainant alleges that this was done to confuse him. The Complainant also submitted that he did not discuss the suitability of other products with the official, a customer advisor. The Complainant submitted that the interaction with the bank official demeaned, insulted and discriminated against him.

The Complainant also submitted that when he was in the branch that day the bank official spilled his tea or coffee over the table several times and kept on apologising. The bank official's behaviour "freaked out" the Complainant.

The Complainant also submitted that the bank official told him several times that he could close the account anytime he liked, that all he had to do to close the account was to send a letter to the Retail Deposit Section and they would take it from there.

The Complainant submitted that due to the strange behaviour of the bank official he called back to the same branch within 14 days of his visit of 26^th May to close the deposit account. The Complainant also wrote to the bank on the 14^th July 2015 and the 14^th September 2015. It was only when he did not hear back from the bank that he decided to send a further letter on the 14^th December 2015 by registered post to the branch manager.

The Complainant submitted that the bank official, the bank branch, the branch manager and the bank, by doing everything in a rush and by not providing him with further details while he was in the branch are liable for discrimination under Section 3(2)(h) of the Acts in respect of the "ground of race", Section 3(2)(j)(v) of the Acts in respect of the "victimisation ground" and section 5(1) of the Acts in respect of the "disposal of goods and provision of services."

The Complainant also submitted that the Retail Deposits Section confirmed to a complaints investigator from the bank, that they had received letters from the Complainant dated the 21^st of July 2015 and the 22^nd September 2015 and that they had in turn requested, on two occasions, that the branch contact the Complainant directly in relation to his correspondence. The branch never contacted the Complainant.

By failing to respond to his letters of 14^th of July and 14^th of September the Complainant submits that the bank's Retail Deposits Section, the Retail Deposits manager, the branch, the branch manager and the bank are liable for discrimination under Section 5(1), Section 3(2)(j)(v) and Section 42 of the Acts.

The Complainant also submitted that the branch manager did not contact him after he sent her a registered letter dated 14^th December 2015, copies of which were sent the Retail Deposits Section. The Complainant believes that this behaviour is utterly unacceptable, it was humiliating and degrading to treat someone this way. The Complainant presented an An Post document (a bar-coded item delivery record) which he believes proves that his letter was received by the branch.

By failing to respond to his letter of the 14^th December 2015 the Complainant believes the branch manager, the branch and the bank are liable for discrimination under section 5(1), Section 3(2) (j) (v) and Section 42 of the Acts.

The Complainant also rejects the Respondent's letter dated the 9^th of May 2016 which states that the branch has no record of receiving his letters or of receiving an instruction from the Deposits Service Centre in July and September 2015.

In his submission the Complainant alleges that the branch and the branch manager are trying to hide the fact that instructions were sent to them from the Retail Deposits Centre. He also submits that the evidence from An Post points to the fact that the letter was delivered and received by the branch.

Furthermore, the Complainant submitted that the Bank's Complaints Investigator, the branch manager and the staff of the branch were fully aware of his race, ethnicity and origin. The Complainant alleges that the branch manager and staff of the branch lied during the course of the bank investigation by that they had no knowledge of his letter, despite the form from An Post.

By treating him as a liar and by confirming to the Complaints Investigator of the Bank that they did not receive his letter dated the 14^th of December 2015, while there is, what the Complainant considers to be strong evidence, from An Post, the branch manager, the branch, and the bank are liable for discrimination under Section 3(2) (h), Section 3(2) (j) (v), Section 5(1) and Section 42 of the Acts.

In his submission the Complainant also explains why he rejected the apology of the bank and the offer of €500.00 in compensation. The Complainant believes that apologies from the Respondent are insulting, degrading, humiliating and discriminating. The Complainant submitted that the offer of €500.00 from the Respondent constitutes corruption and is an attempt by the Respondent to silence him. The Complainant believes the offer of money was an attempt to buy his freedom and rights.

The Complainant submitted that because he is a black man from Africa the bank thought that he would not know his rights and would not have known how to deal with the unfair treatment he received.  

The Complainant submitted that by ignoring and lying about not receiving his communications about closing the savings account under clause 25 of that account, which the Complainant puts forward reads as follows; "Ending this agreement, 25.1 You may ask us to close your account at any time, subject to the chosen product terms and conditions, by writing to the branch where you opened the Account or to the Bank NAME, Retail deposits, ADDRESS", the branch manager, the bank official and the bank have violated his rights.

The Complainant in his submission suggests that he was discriminated against and victimised because he is black and that if he had been white his treatment would have been different. The Complainant says he has suffered stress, anxiety and insomnia because of the way he was treated by the bank and its agents and he demands compensation.

When the Complainant had completed his submission he was asked questions by the Respondent's representative.

When asked whether he had asked to open a long-term deposit account on 26^th May the Complainant stated that he had not, that he wanted to open a savings account.

When asked if he recognised a bank document titled 'Confirmation of Account Opening', addressed to him dated 9 June 2015, which carries a boxed notice setting out the importance of the document and includes why the characteristics of the product being offered, the Complainant said he did. However, he also said that he was told by the bank official that he could close the account at any time.

Asked if he recognised a bank document titled 'Depositlink Account Application Form', dated 26^th May 2015, which bears his signature, the Complainant said he did recognise it but stated that he was being dictated to at the time and was pushed into signing it by the bank official.

Asked if he had read the Terms & Conditions attaching to the product the Complainant said he had not as the bank official was telling him to sign here and sign there. When asked if he signed the document of his own free will the Complainant said he had not that he was being dictated to. Likewise, when asked about ticking the box binding him to the Terms & Conditions, the Complainant stated that he had been told to tick the box.

When asked if he had seen the bank document titled, 'Growth Fixed Term Deposit suite', the Complainant said he had seen them but that the bank official had not read them to him while he was in the branch.   When asked if he had read the document the Complainant said he had read section 25 (Ending this Agreement) and did not want the account.

When asked if he had read section 2.3 of the document, 'You cannot take money out of the Growth Fixed Term Deposit Account during the term', the Complainant said he had not. He also said he did not understand section 2.3. The Complainant stated that he did not believe the bank when they said the refusal to close the account had nothing to do with his race.

Regarding the matter of the letters the complainant said he rejected the bank's apologies regarding their failures to respond to his letters.

When asked by the bank's representative what evidence he had that a white person would have been treated differently the Complainant stated that the non-response to his letters constituted discrimination. The Complainant stated that he had evidence that letters he had sent to the bank had been received yet he was ignored.

Summary of Respondent’s Case:

The Respondent chose to rely mainly on the evidence of several witnesses. The first witness called by the Respondent was the bank official who had met with the Complainant in the branch.

In his testimony the bank official stated that he met with the Complainant on 26^th May 2015 and went through all the information regarding the deposit account. The witness said the Complainant had said he wanted to open a long-term account because of the higher interest rate. At the time he also drew the Complainant's attention to the fact that he could not withdraw his money for seven years, which is not until 2022.

The bank official categorically denied that he had put the Complainant under pressure to open the account, that he had, 'absolutely not' insisted the Complainant sign and not worry about it. H also was adamant that he had not told the Complainant that he could close the account at any time. The bank official said that he had waited 14 days to open the account and sent the appropriate documents to the Complainant.

The bank official stated that he had not discriminated against or treated the Complainant differently because of his ethnicity.

In response to questions from the Complainant the bank official stated that he had not put the Complainant under pressure to sign, that as a qualified advisor he had given full advice and gone through the full checklist.

The bank official also denied pointing out section 25 (Ending this Agreement) to the Complainant.

The next witness called was the branch manager. In response to questions the witness stated that she had never met the Complainant before.

Regarding the letters the branch manager said she did not personally see them. She agreed that the letter sent by registered post had been signed for in the branch but she had not seen it. She also stated that she had never discriminated against the Complainant.

When asked by the Complainant why she had denied seeing the letters the branch manager stated that she had not personally received any correspondence from the Complainant, by way of explanation she stated that the majority of post that comes into a branch is addressed to the manager is opened by others unless marked personal.

The next witness called by the Respondent was the manager of the Retail Deposits Section. The witness explained that the Fixed-term deposit account pays a higher interest rate and that rate is connected to the terms of the product and access or lack of access to the fund, once a seven-year account is opened there is no access to the fund and in ordinary circumstances it is not possible to close the account before it reaches maturity.

Regarding the letters, she agreed that these had been received by her section and were passed on to the branch. The branch was instructed to explain to the Complainant that the account could not be closed.

The Complainant chose not to put any questions to the witness.

In response to questions from me the Complainant said he did not have a copy of the ES1 Form he said he had sent to the bank. When asked if he had a receipt for the ES 1 Form he said he had not sent it by registered post.

When I asked him for specific evidence to support his contention that he had been discriminated against the Complainant stated that because he had stated who he was in correspondence, because the bank knew his ethnicity and colour they discriminated against him.

In response to questions from me the Respondent said that only in extreme circumstances such as the death or serious illness of an account holder could long-term accounts be closed or options offered to account holders.

Findings and Conclusions:

The Complainant has argued that he was told a lie when he opened the Long-term Deposit Account in that he alleges that he was told by the bank official that he could close the account at any time. The bank official categorically denied that he had done so. The Complainant also stated that although he had seen the documents and signed and ticked some documents he had never read the terms and conditions of the Long-term account he was signing on for because he had been rushed by the Bank Official into signing and ticking.   The Complainant says these actions amount to acts of discrimination.

The complainant alleges that the Respondent's failures to respond to letters he sent to them amounts to acts of discrimination. The Respondent accepts there were failures in responding to the correspondence received from the Complainant but this was not in any way due to the Complainant's race.

The Complainant alleges that the Respondent lied about him during the internal investigative process and this was an act of discrimination. The Respondent denies this allegation.

The Complainant did not provide a comparator.

Establishing a prima facie case.

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. I have examined whether the Complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

My first task therefore is to assess the evidence adduced, both documentary and oral, and decide if, on the balance of probabilities, a prima facie case of discrimination has been established.

To determine whether the Complainant has established a prima facie case a three-tier test is employed:

First, the Complainant must establish that he is covered by the relevant discriminatory ground.

Second, he must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

With regard to the first test the Complainant is covered by the relevant discriminatory ground. So this test is satisfied.

With regard to the second test I believe the three allegations must be addressed.

(i)                  the allegation that the Complainant was forced into entering an agreement to open a Long-Term account while being lied to about the terms and conditions relating to the product. From the evidence adduced I do not believe that this allegation is founded. The Complainant was given all the required explanatory documentation and signed or ticked to indicate he was happy with the rules attaching to the account, including the rules governing access to the monies in the account. The bank official who went through the account gave evidence that he had gone through the proper procedures when discussing the account with the Complainant and I believe him. This allegation does not pass this test.

(ii)                the allegation that the Respondent failed to respond to correspondence from the Complainant. By its own admission, the Respondent has agreed with this allegation and has apologised for same. This allegation passes this test.

(iii)               the Complainant alleges that the branch manager lied during an investigative process by denying receipt of correspondence. The branch manager stated that although the majority of post sent to a branch is addressed to the manager, most of the post is dealt with by the staff. I believe the evidence of the branch manager regarding this matter. It is not unusual for post to institutions such as this, although addressed to the manager, to be dealt with by other members of staff.   This allegation does not pass this test.

The third and final test is that it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground. In this case the only one allegation has reached the third test, i.e. the allegation that the Respondent failed to respond to correspondence from the Complainant.

Although the service received was less than satisfactory the Complainant has not adduced any evidence to support his claim that this poor service was related to his race, colour, nationality or ethnic or national origins. Evidence is needed to support such allegations and in this case, none of any substance has been adduced. In the circumstances this allegation does not pass the test.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

I am not satisfied that a prima facie case has been established and therefore the complaint is not upheld.

Dated:   27/11/17

Workplace Relations Commission Adjudication Officer: Roger McGrath

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