Complainant

Respondent

Parties

Michael Ward

EBS DAC

Representatives

Self

Zelda Cunningham

Allied Irish Banks p.l.c

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00026443-001

21/02/2019

This background to this case is a change of correspondence process within the Respondent financial institution.

This was implemented by the completion of a change of correspondence address form by the Claimant’s estranged spouse.

The reverse of the required form contained a box headed “important information”. Number 2 therein indicated that if any of the mortgage accounts were held in joint names, all account holders were required to sign the form before the address could be changed.

A change of correspondence address process took place on the mortgage account of the Claimant and his estranged spouse without the Claimant’s signature.

The Respondent brought a preliminary application. Its case was that the complaint related to an administrative error on the Respondent’s customer relationship management system and associated core systems which occurred in August 2016.

As the complaint was received by the WRC on the 21st of February 2019, thirty-one months after the alleged discriminatory incident took place, the case was statute barred and the WRC had no jurisdiction to hear the complaint.

Furthermore, the Claimant had already lodged a complaint with the Financial Services and Pensions Ombudsman relating to the subject matter and the Respondents suggested that the complaint was more properly resolved by the SPO process.

The Respondent also submitted that the Claimant did not notify the Respondent of his intention to bring a claim under the Equal Status Acts within the statutory timeframe. The ES1 form was not received within two months of the alleged discrimination.

The Claimant withdrew his claim of discrimination on the ground of family status at the commencement of the hearing.

The Complainant’s case was that he was systematically and repeatedly discriminated by the Respondent since the 16th of August 2016.

This was the date when staff described by the Claimant as primarily female staff at the Mullingar branch of the Respondent removed his contact address from his mortgage account held jointly with his estranged wife and replaced it with that of his estranged spouse.

His claim was that he was further discriminated against on the 13th of March 2018 when he was denied statements for his mortgage account held jointly with his estranged spouse. His case was this occurred continuously until the account was closed.

Having made several complaints about the matter to the Respondent and despite receiving recognition and a written apology from it, the Claimant submitted that the discrimination continued to occur. He did not receive any communication from the Respondent to the point that he did not receive confirmation of the closing of the mortgage account after he had paid the balance.

He explained that his private financial affairs were being sent elsewhere including details of repayment of overcharging on the mortgage account.   This correspondence continued to be sent to his estranged spouse’s postal address.

The Complainant’s case is that the removal of his address from the joint account resulted in a serious and most costly delay to him being able to remortgage his property. He was not able to proceed with that process without evidence of mortgage balance and repayment.

The Claimant withdrew his complaint in relation to a subsequent mortgage application.

The Claimant submitted that the local branch of the Respondent was in collusion with his estranged spouse and conspired to deny him any possibility to refinance the mortgage on their family home. This caused him great stress and anxiety. His submission was that he was nearly evicted from his home and made homeless.

He wanted information as to who and why perpetrated these injustices against him.  

He further submitted that he was treated unfairly and illegally and that the Respondent made no recognition of the damage that had been done to him.   He wanted information as to what controls were in place to prevent this happening again.

The Respondent’s case is that there was no factual basis whatsoever to support the Complainant’s complaint of discrimination. The Respondent set out that the Claimant had failed to establish a prima facia case of discrimination on the grounds of gender and civil status.

By way of background information, the Respondent explained that staff in local branches are employed by the relevant tied branch agent and are not employees or under the control of the Respondent. The Respondent defended the claim in its own capacity and not in relation to its agent or the staff of that agent whether existing agent and staff or former agent and staff.

The Respondent accepted that on the 16th of August 2016 a change of address instruction was requested by the Complainant’s estranged spouse.   This action was completed by a female member of staff. The instruction should have been signed by both account holders as it was a joint account, and this is a requirement of the Respondent regardless of their gender or civil status. The local office should have checked that the instruction was completed correctly and only then apply the change to the Respondent’s customer relationship management system. The local office sent the instruction to the head office to update the centrally maintained mortgage system.

The Respondent accepted that due to an error, the change of address was actioned with only one signatory on the instruction form and not the required two signatures.

On the 13th of March 2018 it was agreed the Claimant ordered a copy of his mortgage account statement for the previous year. This is processed by way of a system generated request. As the mortgage correspondence address had been already amended, the request statement was posted to the Complainant’s estranged spouse only.

When the statements failed to arrive by post the Claimant submitted the request again on the 5th of April 2018. The local office processed this request using the steps outlined above.   In this instance the Claimant collected the statements from the local branch.

On the 11th of April 2018 the Claimant submitted an online complaint to the Respondent regarding the changing of address of the jointly held account without his knowledge or consent. In investigating what had occurred the local branch searched two systems only and not the more important third system which dealt with mortgages. The Respondent submitted that this was an operational error.

All correspondence in relation to the mortgage account continued to be sent to the Claimant’s estranged spouses address only. This included a letter 6th of September 2018 confirming the mortgage account had been paid off in full and a further letter 14th of November 2018 containing a refund of the final payment made on the mortgage account.

This operational error was not corrected and continued until the 21st of January 2019 when the address on the mortgage system reverted to the Claimant’s address.

The Claimant met with the local office manager who acknowledged the error and apologised for it. On the same day a letter issued to the Claimant by the local branch office apologising for the error and advising the Claimant that he could make a complaint to the Financial Services and Pensions Ombudsman.

In considering whether I have jurisdiction to hear evidence of allegations going back over three years, I note the decision of Mr. Justice McGovern in Co. Louth VEC –v- Equality Tribunal said that “under the legislation it is clear that ………complaints which are made within the expanded period of time are not time barred” but “again that is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. This is something that would fall to be dealt with in the course of the hearing in any particular case”.

The Equal Status Acts, both in Sections 21(2) and Section 21(1) allow me jurisdiction to investigate more than one incident of the alleged prohibited conduct. In such circumstances, the last incident is the relevant incident in terms of meeting the time related requirements of the Acts. I am satisfied that in the circumstances of this complaint the Respondent is not prejudiced by my hearing of evidence in this matter. I will therefore make my decision in relation to all incidents complained of.

To be protected by the Equal Status legislation it must be established that the treatment complained of is related to at least one of the nine specified grounds set out in the Acts.

Section 38 (a) of the Equal Status Act sets out the burden of proof which applies in a case of discrimination. It requires the Claimant to establish in the first instance facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. In deciding on this complaint therefore I must consider whether the existence of prima facia case has been established by the Complainant. It is only when such a prima facia case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In making my decision I have taken cognisance of the oral and written submissions made by the parties.  

The Claimant’s case is that the Respondent treated him differently to a woman going through a separation process and in doing so discriminated against him.

I note there is no serous conflict of evidence between the Claimant and the Respondents as to what occurred.

The address on the joint account was changed to that of the Claimant’s estranged spouse.

I can understand the frustration and anger of the Claimant arising from the series of events which took place, however the evidence does not bear out that the treatment he received from the Respondent was motivated by his gender or civil status.

No evidence has been furnished to indicate that the action was created by anything other than human error.

The Claimant therefore has failed to establish any facts that are of sufficient significance to shift the prohibitive burden to the Respondent.

The case is not well founded.

Discrimination.   Prima Facie case