Complainant

Respondent

Parties

Nikoletta Borsca

Bank of Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013860-001

12/Sep/2017

The Complainant is a Romanian native and member of the Roma Community. On 12 September, 2017, she lodged a complaint of discrimination in relation to goods and services against the Respondent Bank. The Complainant submitted that she had been discriminated against on age, race, and travelling community grounds and fixed the date of first discrimination as 12 May, 2017 on the complaint form. She subsequently amended this date to 10 May, 2017 on the day of hearing. T

he Complainant confirmed that May 12 signified the date of her first verbal complaint at her local branch. This was accepted by the Respondent who submitted the log of the complaint received.

At the time of lodging the complaint, the complainant submitted that she was without representation. At the hearing, she was represented by a Solicitor who subsequently came off record on May 18, 2018 by way of direct notification to the WRC.

The Respondent, who rejected the claim was legally represented by Solicitor and Counsel. Neither party relied on a written submission outside the complaint form and ancillary documents and I heard oral evidence and cross examination during my investigation.

I requested that the Respondent furnish the Bank Policy on cash withdrawals. I received this and forwarded to the complainants Solicitor for comment, none was received.

The Complainant furnished uncanvassed documents in the aftermath of the hearing. I had not requested these documents and I have not incorporated them into my investigation.

I noted at the commencement of Hearing that the Complainant had not submitted details of the ES1 form. However, she confirmed that she had received a reply from the service provider on the ES2 form. Exact replicas of these forms were not submitted. I proposed to address this by way of Preliminary issue and explained to the parties that I would hear the entire case and decide, which would be open to appeal by either party to the Circuit Court.

I noted the complainant appeared hesitant at the commencement of hearing. I enquire whether she had any difficulty understanding the English Language as she had not sought the support of an Interpreter. She confirmed that she understood English and was happy to communicate in English and to continue with the hearing.

The Complainant is a Romanian native and member of the Roma Travelling Community. At the time of the complaint, she was 17 years old and was caring for her 9-month-old baby.

The Complainants representative submitted that the components of Section 21 of the Equal Status Act 2000-2015 were satisfied in the body of the first letter of complaint to the Bank dated June 1,2017. She confirmed that the stated intention to notify the WRC was omitted from the document.

She submitted that her client had been discriminated against on age, race and travelling community grounds when she was refused a cash withdrawal from her own bank account at one of the Banks branches on May 10, 2017.

The Complainant submitted that she had opened a bank account in her own name on 28 April, 2017 in her home town of Siberian. She described herself as a Lone Parent and the purpose of the account was to facilitate Dept. of Social Protection Payments. There were no funds in the account. She anticipated payment of her Benefits early in May, 2017.

The Complainant confirmed that she was aware that she needed a valid passport or a valid ID to make withdrawals at any branch as she awaited reception of an ATM card from the bank.

The Complainant stated that she received confirmation of payment of her benefits from her Social worker on May 9, 2017. €1,500 was lodged to her account on May 10. The Complainant had travelled to the Midlands to visit friends and she did not have any money to hand.

She had travelled in possession of a valid Hungarian Passport, Public Services card and Birth Certificate. She entered the Respondent bank at 10 am and was approached by a Bank representative Ms A. She informed her she wished to make a cash withdrawal and showed her valid passport. She also offered her Public Service card but this was not taken.

The Complainant explained that she had not received her ATM card and was immediately informed by Ms A that she could only make a withdrawal with an ATM card. Ms A took the passport to a Cubicle and subsequently told the complainant that her ATM card was in fact live and she was lying.

The Complainant submitted that she was in fact waiting for the card and knew it was live but was not at home to receive it. She subsequently collected the card from an unopened envelope at her home some days later at home.

The Complainant outlined that she needed some sort of money as her Baby needed care products. She was advised to leave the Bank as she required her ATM card. She was concerned as she needed water or milk for her baby.

The Complainant returned to her friend’s car and contacted the Skibereen Branch. She was advised that the Bank should recognise a valid passport. She proceeded to re-enter the bank seeking to execute a cash withdrawal. On this second occasion, she met a Male Manager and explained that she was in a bad state. She explained that Skibereen had clarified that a valid passport was sufficient.

She was approached again by Ms A who told her “I need your passport “She described feeling like a criminal as she re-submitted her passport, she saw that Ms A was angry. The Complainant suggested that she call Skibereen.

She was informed that a Manager would be available to assist her.

She waited and then observed that Ms A and the Male Manager were talking to each other and she heard “That is correct, she is a Gypsy “on two occasions. She was highly offended and felt as she had been put down into the ground and was depressed.

She was then approached by both bank employees and directed to her own Branch, to attend with her parents due to her account being a Second level account. The Complainant had no idea what they were talking about.

During cross examination, counsel for the Respondent asked the complainant to repeat the description of opening her account. She confirmed that the account was to be a conduit for her Child Welfare alone. She confirmed that she travelled everywhere with her Birth Cert but had not submitted it at the Bank in Longford. She had not specified which documents she held.

The Complainant confirmed that Ms A had not disclosed the unusual activity discovered on the account. The Complainant was confused. Ms A had not mentioned to her that her passport photo was not a good likeness and this was the first occasion in which she heard this. She confirmed that she had not been welcomed at the bank and had been directed to leave as it was not appropriate to release the funds. She had not offered her Birth Cert or Medical card.

She recalled seeing a tall   employee with dark hair walking around during her second visit. Ms A directed her out of the queue and she went into a cubicle. The Complainant told her to take a seat and she would be called. She confirmed that Mr A and the other employee were staring at her some 20 ft. away. She confirmed that she heard “She is a Gypsy/Gypsy, that’s correct “

She was unclear on whether it was a male or female voice as she was upset. In response to Counsels questions on why this key detail was omitted from the complaint form, the complainant confirmed that her friend had assisted her in completing the form as she herself wasn’t good at writing. She submitted that she thought it best to “say it” than write on a letter, so many things were on her mind.

The Complainant submitted details of a letter of complaint sent to the Respondent Head Quarters on June 1, 2017. This followed a verbal complaint submitted at Skibereen Branch on May 12, 2017. The Complainants Solicitor submitted that this document met the requirements set down in Section 21 of the Equal Status Act 2000-2015 in terms of notification of the complaint.

Referring to these facts, I believe to me at most conscious self that I was discriminated. Discriminated on these grounds Age, race, nationality. I also belief that I was dealt with contravening the Equal Status Act which includes access to banking.

And

I have a strong feeling that this would never happen to an Irish national single mother hence I would wish to make an official complaint based on the provisions of the Equal Status Act, and Discrimination based on Age, Race and nationality.

The Complainant confirmed that the Respondent had entered an exchange of documents with her following her complaint, but the matter remained unresolved.

The Respondent is a large Banking enterprise. Counsel for the Respondent addressed the Preliminary Argument of Jurisdiction in accordance with the provisions of Section 21 of the Equal Status Act, 2000-2015.

He submitted that the complainant had not complied with the provisions of Section 21 and that Ignorance of the law was insufficient defence in the case. He argued that the complainant did not have jurisdiction to progress the complaint.

Counsel introduced Ms A, who worked at the Bank visited by the complainant on May 10, 2017.

Evidence of Ms A.

Ms A had been employed by the Bank for 40 years. She had qualified in financial services and worked as a “Welcome advisor”, which involved filtering customers through to the banks services, which had recently received a new Lay out. Ms A recalled May 10, 2017 and meeting the complainant. She approached the complainant and asked her what she could she assist with? The Complainant requested to make a cash withdrawal from a recently opened account not covered by ATM. She requested that the complainant submit her Passport ID, took it and brought up the account on the Computer screen. She saw a lodgement for the same day but she was surprised to see that the account reflected live status rather than the anticipated inactivated.

Ms A became cautious as the complainant had confirmed that she had not received her ATM card. The Complainant wondered if the “live “status had been activating by her Mother? Ms A recited the Bank protocol surrounding account activation which was only possible through the ATM card.

Ms A proceeded to check the complainant’s passport for ID purposes. She didn’t believe the identity was correct as it reflected a 4-year-old photo and the complainant looked more mature and did not, in her opinion resemble the passport picture sufficiently.

She confirmed emphatically that she had explained that it was not a good likeness to the complainant. The Complainant had not responded to this. MS A was clear that she had not asked the complainant to leave the bank on that morning.

Ms A proceeded to phone the Complainants branch and left a message. She observed the complainant then talking to her colleague, Mr B, a customer advisor, who had a red beard and was 5ft 8 inches tall.

Ms A could not visualise the complainant in the queue on her return visit, nor could she recall if her colleague had brought the Passport to her. Ms A did recall asking one of her colleagues to check the likeness and she too found that the photo was not a good resemblance.

She rejected that she or anyone else at the bank had referred to the complainant as a Gypsy. Ms A recalled 6 metres between her and the complainant. She deferred to the Banks Training manual where in the absence of a pass card, the agent of the bank is required to be totally confident in who is the owner of the funds. She had reservations in the complainant’s case.

Ms A detailed the tiered system of accounts at the bank

1.       Second Level 12-18 years of age

2.       3rd level University

3.       Graduate

4.       Personal Current account

Ms A confirmed that the complainant would not have been required to attend her local branch to upgrade her account. The Complainant had not been asked for alternative ID. During the explorations on the account, Ms A had discovered an internal message on the account that the Passport date ended with a cause for concern.

During cross examination

Ms A confirmed seeing the complainant talking with her colleague but was not a witness to their conversation. she recalled seeing the passport but did not have a clear memory of the second visit. Both visits to the bank were 20 minutes’ duration and the complainant left at noon.

The Complainants local branch reverted after lunch, they did not verify the photo, just the number. Ms A had thought the passport was of Irish origin.

Counsel for the Respondent detailed that the Bank had made several efforts to resolve the matter amicably with the complainant through the Banks own complaints procedure without success. The Respondent submitted a record of the initial verbal complaint made at the local branch on May 12, 2017.

“ ……. She was told she didn’t resemble her passport picture from when she was 14. Branch contacted local branch who verified passport details as correct passport. Customer would like written apology and gesture for stress incurred.”

The Respondent submitted that the Banks own complaints procedures had not resolved the matter.

Counsel disputed that the Complainant had been discriminated on age grounds as there were no restrictions on the complainant being provided with a bank account. This was facilitated and her parents gave back up information on her address.

He disputed that the complainant had been discriminated on race grounds as there was no difference in treatment extended towards her. The Bank acted to protect the integrity of the funds in her account when not satisfied with her likeness submitted on the passport.

He disputed that the complainant had experienced prohibited conduct on travelling community grounds as the day of hearing coincided with the first time the Respondent had heard details on the double reference to Gypsy during the first visit to the bank. It had not been incorporated into the complaint form.

I have carefully considered the submissions raised by the parties in this case. I have reviewed the documentation which accompanied the submissions.

Section 21 of the Equal Status Acts 2000-2015 sets out the limits of my jurisdiction in the case.

S.21 (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 ,

and

( b ) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court , question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.  

(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.  

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

The WRC has also published a Guide to Equal Status Acts for the Complainant (September 2017). This sets out the two-step process in accordance with Section 21 of the Act, which ought to accompany a complaint of Discrimination in relation to the provision of goods or services.

1 There is a requirement to write to the respondent within 2 months of the alleged incident, setting out the nature of the complaint and saying that if you are not happy with their reply, you may seek a remedy under the Equal Status Acts. The complaint is not valid unless this measure has been adhered to.

2 The WRC provides an ES1 form to assist that process and this must be lodged within 6 months of the date of the incident. A copy of this form should accompany any complaint before the WRC. The WRC is hindered from dealing with the complaint until a month has passed since the respondent has been notified.

If notification has not been issued to the respondent within the 2 months, the complaint is said to be out of time. There is provision to seek an extension of time to 4 months from the date of the incident.

I have considered the complaint form lodged before the WRC on 12 August 2017. The Complainant opened her complaint by incorporating the entire complaint made through the Banks Internal procedures. This document was dated June 1, 2017 and was acknowledged by the Respondent as received on June 15, 2017. The Complainant pro-offered that this formed the ES1 in the case.

The Complainants Representative submitted that this document complied with the statutory requirements of notification set down in Section 21 of the Act, save an omission to state an intention to refer the matter to the WRC if dissatisfied with the response of the Respondent.

The Complainant identified the ES2 in this case as arising from the Respondent letter of 12 July 2017.

My jurisdiction in the case rests on a compliance with the terms of Section 21 (2). No application was made to set this section aside on exceptional circumstances. The Complaint was first received by the WRC on 12 September, 2017, some three months post the alleged events of discrimination.

However, I have found that the complainant activated the Banks Internal complaints procedure by means of the letter dated June 1, 2017. It now seems that she also wished to present this document in a dual capacity as complying with the ES1 format before the WRC. It is regrettable that the ES1 form readily available on line did not reach the Respondent in its pure format . I found that the duplication in complaints served to confuse the issues which separated the parties .

However, there are strict notification requirements and these have not been satisfied in their entirety in this case. I appreciate that the Complainant referenced the Equal Status Act in her complaint but there is a clear variance in the statutory notification requirement .

The purpose of the ES1 form is to allow the Respondent some time to engage with the complainant with a view to seeking to resolve the matter. Provision is made for Information sharing if same is requested by the complainant.

The Complainant did not place the Respondent on notice of her intention to refer the case to the WRC if dissatisfied with the response received by the respondent. I appreciate that there was a clear duplication in the initiation of the complaints which culminated in confusion. However, I am required to ensure that all aspects of Section 21 of the Act have been met. On this occasion, I have found a shortfall which in my opinion has not been sufficiently explained or reasoned by the complainant.

This omission has prevented my jurisdiction in the case and I must deny jurisdiction.

Decision:

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

I have concluded my consideration of the Preliminary Issue on Statutory Time limits and have found that considering the incomplete compliance with the requirements set down in Section 21 of the Act, I lack the jurisdiction to decide in the case.

The Complaint has not succeeded.

Discrimination Age, Nationality and Travelling Community. Notification Period.