ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023225

Parties:

Complaint(s):

Date of Adjudication Hearing: 18/10/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance Section 25 of the Equal Status Act, 2000following 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:

This complaint refers to an allegation of discrimination of a male on the grounds of gender in relation to the supply of services by the Bank to support persons who suffer from financial abuse. The alleged acts of discrimination related to a campaign promoted on YouTube entitled “Abusive Teller Machine” where the Complainant maintained that he found the publication to be grossly offensive to men. The Complainant maintained the video was also subject of discussion on a radio programme, and where there was also further discrimination by the Bank’s Marketing Director on subsequent comments made in a publication.

Central to the Complainant’s contention was that whilst he never sought to access any service by the Bank with regards to support for financial abuse, the video campaign was in general discriminatory against all men by its nature and presentation, and that the Bank only provided one service in its advertisement which was a service specifically focused on the needs of women.

Summary of Respondent’s Case:

Without prejudice to its position the Bank denied that its campaign was discriminatory, and it was part of many campaigns it is involved in. The Bank in its response raised a number of preliminary issues which would deem the complaint to be outside the jurisdiction of the hearing of the WRC.

Preliminary Issue - Locus Standi

The Bank submitted that the Equal Status Act (The Act) applied to the provision of goods and services and the Complainant had failed to show how he was treated less favourably than people of a different gender in relation to any goods or services provided by the Bank. The Bank maintained that the Complainant was not refused a service or treated less favourably in respect of any service.

The Bank maintained that the service that featured on YouTube was not provided by the Bank, but it collaborated with a women’s representative group with regards to a particular service being offered in relation to financial abuse. The Bank maintained that the video represented both men and women and was not specific with regards to abusers other than a statement at the end of the video that 198,000 women in Ireland are subject to financial abuse. The Bank further maintained that in the subsequent article where its Marketing Director was interviewed there was no specific reference to any gender, but it was clear that the Bank provided support to any of its clients who may be suffering from financial abuse.

The Bank maintained that no service or goods were either offered or sold through the campaign, nor has the Complainant been refused any goods or services as a result of the campaign. The Bank maintained that under Section 5 of the Act it was not disposing goods or services to the public generally or to a section of the public, and therefore on a preliminary issue it could not have acted in a discriminatory manner.

With regards as to whether the publication on YouTube was a breach of Section 12 of the Act which refers to prohibited advertising, the Bank maintained that Section 36 of the Irish Human Rights and Equality Commission Act 2014 provides the IHREC with exclusive power to enforce Section 12 of the Acts, and where Section 23 of that Act also gives the IHREC exclusive power to refer complaints arising under the section to the WRC. In this regard the Bank maintained that the Complainant had raised a concern with regards to the advertisement to the Advertising Standards Authority of Ireland who had advised the Bank of the 12th June 2019 that it had received 3 complaints about the YouTube posting. The Advertising Standards Authority of Ireland advised the Bank that it’s Code applies to advertisements which have a commercial objective, that is a sale of a product or service. Where a marketing communication’s principal purpose is to express a position on political/religious/industrial relations/social or aesthetic matters, or an issue of public interest or concern, it is deemed outside the scope of the Advertising Standards Authority of Ireland Code. The Advertising Standards Authority of Ireland therefore concluded that the matter was not one for it’s consideration. On that basis the Bank maintained that the YouTube posting was not deemed to be an advertisement for the purpose of the supply of services and accordingly it could not be deemed as a discriminatory act under that section of the Equal Status Act, 2000.

On the basis that Bank contended the Complainant was not treated less favourably in relation to goods or services, and the basis that it was not involved in advertising services under Section 12 of the Act, the Bank maintained that the complaint did not have locus standi.

Preliminary Issue - A Claim on Behalf of a Group

The Bank further maintained that the Complainant was not entitled to bring a claim on behalf of groups of people and equally it had no locust standi. The Bank referred to jurisprudence in Gloria (Ireland’s Lesbian and Gay Choir) vs Cork International Choral Festival (DEC-S 2008-078) in which it maintained it was clearly established that a claim of breach of the Act could not be maintained by an organisation, public body, a corporate association, or an entity. The Bank maintained that the Complainant is the Chairman of Men’s Voices Ireland and prior to a complaint under form ES1 he had engaged directly with the Bank with the complaint and had communicated with the Bank in a number of letters up to June 2019. The Bank submitted that the Complainant’s correspondence to the Bank is similar to the cases made by the Men’s Voices Ireland group. On that basis the Bank maintained the Complainant was representing Men’s Voices Ireland and accordingly had no locust standi for the case to be heard.

The Bank further maintained that essentially part of the complaint is that the YouTube posting was offensive for all men and the Complainant was submitting the alleged discrimination occurred to both himself and for all men. The Bank therefore did not accept that the complaint raised by the Complainant in form ES1 was separate to or not associated with his earlier representations made on behalf of the Men’s Voices Ireland group.

The Bank further submitted that all correspondence prior to submission of the ES1 were signed off by the Complainant as Chairman of Men’s Voices Ireland. With reference to jurisprudence in Health Worker vs Health Service Provider (ADJ-00005333) where that Complainant had used language in the complaint form in a similar manner by the Complainant prior to the submission of the ES1 form. In this regard the Bank maintained that the Complainant sent a number of letters to its Chief Executive Officer where the content of these letters mirrored that of the complaint form, and indeed mirrored some of the statements made at the hearing. Under these circumstances the Bank submitted that based on case law the Complainant did not have the requisite locust standi to advance his claim to the WRC. Accordingly the Bank submitted that the WRC did not have jurisdiction in relation to the complaint of discrimination on the gender ground.

With regards to its position that it was not providing goods or service, the Bank referred to jurisprudence in Roberto Alamazani vs Daft Media Ltd (ADJ 00003299) where an individual member of the public could pursue a complaint against a respondent to the WRC, but where in the absence of any evidence supporting the provision of any goods or service within the meaning of Section 5 of the Act that the Complainant could not sustain a complaint of discrimination.

Preliminary Matter Regarding having a Prima Facie Case

The Bank also raised a concern with regards to the burden of proof where under Section 38 A of the Acts which requires that in any proceeding facts are established by or on behalf of a person from which it may be presumed that prohibitive conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary. The Bank submitted in accordance with Section 38A the Act the burden of proof rests with the Complainant as a preliminary matter, to establish the facts from which discrimination on the grounds of his gender may be presumed. The Bank maintained that the Complainant had not sought for, nor had he been denied a service from the Bank and therefore a prima facie case did not exist.

Referring to jurisprudence in the Southern Health Board vs Mitchell (2001) ELR201 where the Labour Court determined that a claimant must discharge before facts are established from which it may be presumed that a prohibited conduct may have occurred and in particular stated “it is necessary however to consider the extent of the evidential burden which a claimant must discharge to form a prima facie case of discrimination on the grounds of sex can be made out… The claimant must establish the facts from which it may be presumed that the principal of equal treatment had not been applied to them. This indicates that a claimant must provide, on the balance of probabilities, the primary acts on which they rely in seeking to raise a presumption of unlawful discrimination. …This approach means that the appellant must first prove, as a fact one or more of the assertions of which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the Respondent must provide that he was not discriminated against on the grounds sex. If he does her case cannot succeed.

Referring to Darguzis v Lough Carrib Engineering Ldt (DEC-E2009-038) the Bank submitted that the Labour Court refused to infer, in the absence of evidence, that a claimant was treated badly on the grounds of his nationality, as such an inference of less favourable treatment could only been drawn where there was some evidence from a sufficient weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably or differently to the claimant. The Labour Court stated that the mere assertions of such treatment without the support of any evidence could not shift the burden of proof or provide a footing on which discrimination could be inferred.

In this regard the Bank maintained that the Complainant had not put forward any detail which would support any complaint under the Acts. The Bank referred to the Complainant’s assertion that the Bank had entered the fraught field of gender relations and allied itself with a powerful lobby group in a manner which is not fair, objective, or impartial. And where the Complainant also claimed that this “offends men and me in particular”.

The Bank maintained that the Complainant did not refer to any occasion or provide any evidence where he was denied a product or service under the basis of his gender other than a bald assertion of discrimination. The Bank further argued that the Complainant further failed to put forward any link between the YouTube campaign and goods and services that he had been denied access to due to his gender. On that basis the Bank submitted that the Complainant failed to put forward any evidence which it could be concluded that a a person of a different gender was treated more favourably or differently to him.

A further preliminary issue raised by the Bank refers to the jurisdiction for the complaint to be heard. In this regard the Respondent t referred to Section 5(1) of the Acts which states “a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public. The act defines service as a means or facility of any nature which is available to the public generally or a section of the public, and goods are defined as meaning any articles of movable property.

The Bank maintained that it’s YouTube campaign was not intended to, nor did it promote any product or service, but it was one of many causes that related to community based activity that Bank works on. It maintained that the Advertising Standard of Ireland concurred with this point in their findings and where the campaign did not pursue a commercial objective. The Bank again maintained that the Act only provides a cause of action against a provider of goods or services under Section 5. On that basis the Bank submitted that the Complainant could not sustain a complaint of discrimination on the ground of gender under Section 3(2)(a) of the Act.

In response to the Complainant’s assertion that the Bank collaborated with a women’s group to raise the issue of financial abuse, the Bank submitted that its video featured both men and women, and where any subsequent statements made by its Marketing Director referred to any customer who could avail of the services or support that the Bank would provide. The Bank further submitted that it is a material fact that the Complainant did not seek to access the service, and equally the Bank did not discriminate any particular gender with regards to the service it was providing.

Finally, the Bank sought for the hearing to rule the complaint as being misconceived in that Section 22 of the Act states the Director of the Workplace Commission may dismiss a claim at any stage if it is of the opinion that it has been made in bad faith or as frivolous, vexatious or misconceived or relates to a trivial matter. Referring to jurisprudence in Thomas Whelan vs The Football Association of Ireland (DEC-S2018-001) the Bank identified that the meaning and scope of the words frivolous and vexatious were succinctly articulated by a decision of the supreme court by Barrow in Farrelly vs Ireland and ORS (1998)ELR256 which stated that “so far as the legality of the matter is concerned frivolous and vexatious are legal terms. They are not pejorative in any sense or possibly in the sense that Mr Farrelly may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance in succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious”.

The Bank argued that the meaning and scope of the word ‘misconceived’ has been set out by the High Court in Keane v The Minister of Justice (1994)3IR347 wherein this case it was found that a claim is misconceived if it is incorrectly based in law.

The Bank therefore submitted that in the Whelan case referred to above the Adjudicator had found that a complaint is misconceived where the respondent is not a service provider within the meaning of the Equal Status Act.

The Bank further contended that the Complainant has failed to establish any nexus between the alleged treatment and the protected ground.

The Bank again maintained that it was not a service provider with regards to the support being provided within the meaning of the Act, as the service was being provided by a women’s group. and in the context of any alleged discrimination and that the Complainant had failed to establish any nexus between the alleged treatment and the protected ground being that of gender.

Summary of Complainant’s Case:

The Complainant submitted that the discrimination occurred following the publication on YouTube of a video known as “Abusive Teller Machine” where the Complainant maintained that he found the publication to be grossly offensive to men. He submitted that the video first appeared on the 29th April 2019 and where the Complainant maintained it was still hosted on a website. The Complainant maintained the video was also a subject of discussion on a radio programme and where there was further discrimination by statements made by the Bank’s Marketing Director in subsequent comments made on a publication about the campaign.

The Complainant submitted that the YouTube campaign referred to financial abuse, and where the essence of the video was that women were primarily the subject to financial abuse. In particular the Complainant submitted that the video referred to a statistic of 198,000 women being subjected to a financial abuse, and for those that are experiencing financial abuse there are services available by the Bank to support victims. The Complainant submitted the statistics referred to were flawed, misrepresentative, not credible, and discriminatory towards men. The Complainant submitted that proper research would indicate that both men and women equally abuse, and the figures of financial abuse as mentioned in the advertisement were incorrect. He therefore maintained that this was further discrimination against men, and against him.

The Complainant maintained that the advertisement was specifically directed as a service for women and inferred by its nature that women were the victims of financial abuse and that men were the abusers. He maintained that as a consequence the support service offered by the Bank was discriminatory to him as a man, and to men in general.

The Complainant advised that he never sought to access any service by the Bank with regards to the support service, but the campaign was in general discriminatory against all in its nature and presentation.

The Complainant argued that the Bank was in fact advertising a service and that at the end of the posting the message referred to a service being provided by a women’s group that the Bank supported.

The Complainant did not accept that the service was available for any person who experiences abuse, and in his view the YouTube post clearly discriminated against men.

Findings and Conclusions:

The matter referred for adjudication is whether or not the Complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(a) of the Equal Status Act, and in terms of Section 5 (1) of that Act.

Section 5(1) of the acts states a person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Section 12 of the Act refers to Prohibited advertising. S12(1) of the Act states A person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct or might reasonably be understood as indicating such an intention. S12(2) states A person who makes a statement which the person knows to be false with a view to securing a publication or display in contravention of subsection (1) shall, upon the publication or display being made, be guilty of an offence. The Irish Human Rights and Equality Commission has been given power to serve equality and human rightscompliance notice on any person who has contravened this subsection.

Section 12(3) of the Act states an advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing or display of advertisements shall be construed accordingly.

In reaching my findings 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. Having considered the matters, I must in the first instance review the preliminary objections raised by the Respondent.

The preliminary matters raised by the Respondent refer in general to the issue of locus standi. Having considered the matter and reviewed the evidence I am satisfied that the Bank collaborated in the production of a posting that was published on YouTube and where the focus of the message in the posting related to financial abuse. I am satisfied that the posting could be subjectively reviewed as indicating that women were subject to financial abuse and that their partners were the abusers. However equally there are both men and women featuring in the posting; both men and women are depicted using the ATM that was the subject of the concept of the financial abuse; and both women and men appear to be challenged in the posting by the sense of being financially abused. The posting did conclude by advising that supports were available if the viewer or somebody they knew were suffering from financial abuse. The posting did not state that the support service was being provided by the Bank, nor did it represent the Bank as providing the support service. The Women’s Aid Helpline was displayed at the end of the posting.

I am satisfied that the posting itself was not offering a service, as defined under Section 5 of the Act, by the Bank or on behalf of the Bank. I therefore uphold the preliminary objection that the Bank was not in fact offering a service in this case, and therefore no discrimination could have occurred.

With regard to the preliminary issue of the burden of proof, I am satisfied that the Complainant never sought the support service from the Bank, albeit the Bank was neither providing a service, or advertising that it provided a service.   Moreover, the Complainant was never denied the supply of services by the Bank. I am also satisfied that whilst the campaign focuses on one element of financial abuse, the Bank has clearly made follow on statements as provided in its evidence that it supported any customer who experienced any financial abuse from any partner. I am therefore satisfied that in making these statements the Bank was not discriminating one gender over the other, nor was it excluding any support it might provide to one gender over the other.

With regards to the Bank’s contention that the complaint is misconceived or frivolous, Section 22 of the Act states a claim may be dismissed at any stage if the WRC is of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.   I am satisfied that the Complainant felt strongly with regards to what he believed was the message being given by the Bank and where he maintained it related to a specific service the Bank was offering. It is however a matter of fact, that that the Bank was not providing a service as defined by the Act. It was supporting a campaign relating to financial abuse. Whilst I have no doubt the Complainant was genuine with his belief that the campaign appeared offensive to men, the Bank submitted it is obvious the Complainant was aware of a complaint or complaints raised about the campaign to the Advertisement Standard Agency of Ireland, and where the complaint was not considered by the Agency as it was not deemed to be an advertisement. I am not satisfied sufficient evidence has been submitted to corroborate the Banks assertion that the Complainant was one of the parties who raised a complaint to the Agency.

Notwithstanding, as referred to in the Bank’s evidence, jurisprudence has established that vexatious must be considered in its legal term as defined by the Courts. In that regard for a complaint to be considered vexatious the Complainant must consider that he has no reasonable chance in succeeding, and by its nature the complaint is is a hardship on the defendant to have to take steps to defend something which cannot succeed. The Complainant presented with the impression the he believed the Bank was actually providing a support service for persons who experienced financial abuse, but that service was available for women only. As a man he therefore maintained he was discriminated from how he believed this service was advertised, and how it was to be provided. I therefore do not find the Complainant is vexatious, albeit I have already concluded the Bank was not providing a service nor was the You Tube posting an advertisement for services provided by the Bank..

With regards to the complaint being misconceived, in Keane v The Minister of Justice (1994)3IR347 it was found that a claim is misconceived if it is incorrectly based in law. With consideration of this principle I find that it should have been apparent to the Complainant that the campaign did not refer to a service being provided by the Bank, nor did it advertise a service provided by the Bank. As an experienced campaigner for men’s rights, and being a Chairman for Men’s Voices Ireland, it should have been obvious to the Complainant that there was no breach under section 5 and 12 of the Act, and therefore no discrimination could have occurred. I therefore find the complaint is misconceived and has no merit.

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 do not find in favour of the Complainant and dismiss the complaint as being misconceived.

Dated:   16.1.2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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