DEC-S2018-009

EQUAL STATUS ACTS

DECISION NO. DEC-S2018-009

PARTIES:

Mr Adrian Lenehan

v

Bank of Ireland

(Represented by Elizabeth Donovan, BL)

File reference: et-158266-es-15

Date of issue: 12th April, 2018

HEADNOTES: Equal Status Acts – Age Discrimination – provision of service

Dispute
This dispute concerns a claim by Mr Lenehan that he was discriminated against by Bank of Ireland on the grounds of his age contrary to section 5 of the Equal Status Acts.

1.2 The complainant referred his claim against the Respondent to the Director of the Equality Tribunal under the Equal Status Acts on 22 July 2015. On 30th November 2017 in accordance with her powers under section 25 of the Equal Status Act 2000 to 2014, the Director then delegated the case to me, Shay Henry, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 17th January 2018.

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

1.4 At the outset of the hearing both parties agreed that the appropriate respondent was Bank of Ireland and not the named bank manager.

2. Complainant’s submission

2.1 On 18th December 2014 the complainant met with the manager of the Bank of Ireland – Boyle branch – to discuss the possible purchase of a number of properties. A number of issues were discussed including the requirement for the complainant to open a current account with the branch and provide a deposit. The deadline for the purchase of the properties was quite short and therefore the complainant asked for a decision by the following day.

2.2 The next day the bank manager phoned the complainant and informed him that his application had been declined. During the conversation that ensued the bank manager gave the reason for the refusal as that the complainant was too old. He suggested buying the properties in the names of the complainant’s sons.

2.3 The complainant was advised that this was age discrimination. He awaited the formal letter from the bank giving the reasons for the refusal. He wrote to the bank on 2nd April and 27th April seeking this letter and received a reply dated 28th April 2015. This letter outlined four reasons for the refusal of the application. The Complainant does not accept that these are valid reasons and believes they were simply a tactic on the part of the bank to frustrate him in availing of the Equal Status Acts. He was unaware of the time constraints at that time.

3. Respondent’s Submission

3.1 Preliminary Issue

3.1.2 Section 21(2) of the Act provides that,

(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.

3.1.3. Section 21(3) of the Act provides;

(3) (a) On application by a complainant the Director 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 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.

3.1.4 Section 21(6) and (7) provide

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

3.1.5 The Complainant gave the date of 18th December 2015 as the date on which the alleged unlawful treatment occurred. This is clearly a typographical error and should have read 18th December 2014.

3.1.6 In his letter of 22 July 2015 the complainant states that after his conversation with the bank manager on 18 December that he gave consideration to age discrimination and felt shocked, hurt and insulted and knew he had been wronged. He stated that he immediately informed his solicitor and Age Action about what had occurred. He also stated that he spoke with a second solicitor and Citizens Advice about the issue.

3.1.7 The first notification received by the Bank of the complainant’s complaint was by letter dated 22 July 2015 and his ES1 form dated 26 July, seven and a half months after the complained of conduct. The complainant requested an extension of time but provided no reason other than he had not been aware of the time limits. In April 2016 the only reason given by the complainant for the delay was that he felt because of the seriousness of the complaint he should include the bank’s reason for declining the request and wanted to have the official response. The letter he claims he was waiting for was sent by the bank to him on 28 April 2015. He then waited a further three months before completing the ES1 form on 26th July 2015. No reason was provided for this delay.

3.1.8 The complainant also failed to provide any reason for his failure to seek redress within the six months required by the Act.

3.1.9 It is therefore the respondent’s submission that the Complainant has failed to establish the existence of the exceptional circumstances required under the Act for the Director to dispense with the statutory requirement for the complainant to notify the bank of his complaint in time and therefore the Director does not have jurisdiction to investigate the complaint. It is further submitted that the complainant has failed to establish any reasonable cause to allow the Director extend time for the complainant’s application for redress.

3.2 Substantive Issue

3.2.1 The respondent set in detail its reasons for the declining the Complainant’s application by letter dated 28 April 2015. These were in accordance with the respondent’s standard credit policies and unrelated to age. The complainant came to his own conclusion that his application was declined on the grounds of age. He has failed to establish that he was treated less favourably than a person of a different age in a comparable situation and therefore he has failed to establish a prima facie case of discrimination.

4. Conclusions

4.1 Preliminary Issue

This complaint was taken on the age grounds and relates to the respondent’s decision not to give loan facilities to the complainant to purchase properties, allegedly because he was too old. The respondent at the hearing submitted that the ES1 notification was submitted outside of the prescribed time limits and secondly, that the claim for redress was also outside the time limits.

4.2. Section 21 (2)(a) of the Equal Status Acts, 2000 - 2015, states that

"Before seeking redress under this section the complainant-

(a) shall, within 2 months after the prohibited conduct 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.”

4.3 Section 21(3)(a) of the Equal Status Acts, 2000 - 2015, states that:

"On application by a complainant the Director may-

(ii) exceptionally, where satisfied that it is just 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."

4.4 The respondent submits that the complainant stated that after his conversation with the bank manager on 18 December he gave consideration to age discrimination and felt shocked, hurt and insulted and knew he had been wronged. He stated that he immediately informed his solicitor and Age Action about what had occurred. He also stated that he spoke with a second solicitor and Citizens Advice about the issue. The first notification received by the Bank of the complainant’s complaint was by letter dated 22 July 2015 and his ES1 form dated 26 July 2015, in excess of seven months after the complained of conduct. In April 2016 the only reason given by the complainant for the delay was that he felt because of the seriousness of the complaint he should include the bank’s reason for declining the request and wanted to have the official response.

4.5 The complainant states that he was unaware of the time requirements. Secondly, he wished to have the official letter from the bank as it would be a necessary part of his complaint and that the letter when it arrived did not include the reason previously given to him by phone – that he was too old. He was also away for a month during the period in question.

4.6 The notification did not comply with the notification time limits as set out in the Acts as the alleged offending incident occurred on 18th December 2015 and he did not notify the respondent as required until 26th July 2015. However, Section 21(3) of the Acts provides that, on application by a complainant, the Director may for ‘reasonable cause’ direct that the notification period of 2 months be extended to not more than 4 months or ‘exceptionally’ where satisfied it is fair and reasonable the Director may direct that the requirement for notification shall not apply to the extent specified in the Direction.

4.7 The notification in this case was sent more than 7 months after the most recent date on which the Complainant alleges the discriminatory conduct occurred. In accordance with Section 21(3)(a)(ii) the Complainant must show exceptionally, that it is fair and reasonable not to apply the time limit. Therefore I must be satisfied that the case made is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts. In coming to that decision I am required by section 21(3)(b) to take into account the extent to which the respondent is or is likely to be aware of the circumstances and the extent of any risk of prejudice to the respondent's ability to deal adequately with the complaint.

4.8 In this case the complainant has given three reasons for the delay; firstly, that he was unaware of the time constraints; secondly, that he wanted to await the formal response from the bank and; thirdly, that he was away for a month.

4.9 The complainant gave his evidence in a forthright manner and persuasively throughout the hearing. However, in relation to the time issue he put forward no reason that could be considered exceptional. Not knowing the rules cannot be considered to fulfil the requirement, particularly as he had spoken to and/or sought advice from a number of different authorities. Waiting for the formal letter may have had some merit but it does not explain the further delay of almost three months after receiving it. Furthermore, as a critical issue in the case related to a telephone conversation between the complainant and the bank manager on 18th December 2015, I cannot be assured that the respondent’s ability to deal adequately with this aspect of the complaint has not been compromised by the delay of over seven months.

4.10 As the complainant has not provided persuasive exceptional circumstances, that both justify and explain the delay in notifying the respondent of the alleged discrimination, I am, therefore, not empowered under the Acts to accede to the complainant's request to dispense with the notification requirement. I am satisfied that the notification requirements set out in S. 21 (2) of the Acts, were not complied with, and accordingly, I find that I have no jurisdiction to investigate the complaint.

4.11 The complainant has not provided reasonable cause why the period of six months, within which a claim for redress must be made as required under Section 21(6) of the Act, should be extended to twelve months and accordingly, I find that I have no jurisdiction to investigate the complaint.

5. Decision

5.1 In reaching my decision, I have taken into account all of the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that;

the complaint of discriminatory treatment on grounds of age was notified outside of the statutory time limits, and
the claim for redress in respect of prohibited conduct was referred after the end of the period of 6 months from the date of the occurrence of the prohibited

I do not have jurisdiction to investigate this matter.

____________________

Shay Henry

Adjudication/Equality Officer

12th April, 2018