ADJ-00031010

Complainant

Respondent

Parties

Adrian  Caulfield

Microfinance Ireland

Representatives

  Self

Ronnie Neville, Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00041375-001

01/12/2020

The respondent provides small loans to small business through the Government’s Microenterprise Loan Fund.  The complainant applied for a loan on behalf of Working Holiday Ireland Limited on 21/09/2020.  The respondent declined the loan application.  The complainant views the loan refusal as discrimination in the provision of goods and services.   The complainant submitted his complaint to the Workplace Relations Commission on 23/12/2020.

The complainant is a Director of Working Holiday Ireland Limited.  On 21/09/2020 the complainant submitted a small business loan application for €2,000 to the respondent.  He wanted to set up and develop a microenterprise. The complainant was refused this loan on 03/11/2020 The complainant sent a letter of complaint to the respondent on 09/11/2020.  The basis of this complaint was that he was being discriminated against because Microfinance Ireland did not comply with their mandate as outlined in SI 343 of 2012 [Microenterprise Loan Fund Scheme 2012] and in particular their credit policy, credit procedures, loan eligibility and purpose of load.  The complainant also took issue with the respondent’s assessment of his capacity to repay the loan.  He also referenced the European Investment Fund EIF and the EU programme for Employment and Social Innovation (EaSI). The respondent reviewed his application and outlined its rationale for declining the loan.  The respondent decided that the level of turnover did not support a sustainable business which would demonstrate the ability to repay the loan.  The respondent also confirmed that they operate a non-discriminatory approach to all applicants and they were not aware of the nature of the complainant’s disability and it did not have any bearing on their decision.

At the hearing the complainant made a number of preliminary applications:

1)      The assessment of his loan application was misconceived by the respondent.  They are not an entity regulated by the Central Bank and therefore their use of the Central Bank’s code is not applicable.

2)      The respondent is violating their Charitable Purpose as outlined in Section 3 of the Charities Act, 2009.

3)      The respondent has violated SI 393/2015 [Microenterprise Loan Fund Scheme 2015]and in particular the sections 3 and 5.1.1.

4)      The respondent loan application process did not provide the complainant with the option of disclosing that he suffers from a disability and or is a person from a vulnerable group.

5)      The use of the 2012 Code to assess microcredit applications was flawed.  The more applicable code to assess such applications is the European Code of Good Conduct for Microcredit Provision.

6)      The use of the 2012 Code and the subsequent refusal of his credit application was erroneous.

The complainant submitted that the respondent was set up as a not-for-profit entity and the objectives of the scheme are to support small business with less than 10 employees who may be having difficulties in accessing funding for their business from banks and commercial lenders. 

The respondent provides small loans to small business through the Government’s Microenterprise Loan Fund.  The purpose of this fund is to assist start-ups and established business to get the finance they need.  The respondent considers each loan application and its decisions are based on the viability of the business and the applicant’s ability to repay the load.

The applicant in this case made a loan application for €2,000 on 21/09/2020 and this application was declined.  The letter which declined the application stated: “the sustainability of cash flows in the business has not been established and consequently, this would affect your ability to meet loan repayments and puts repayment capacity in doubt.”

The respondent’s reply to the preliminary applications was that a number of these were misconceived.  The Workplace Relations Commission (WRC) has no jurisdiction in relation to the respondent’s loan criteria or loan application process.  The respondent offered a comprehensive explanation to the complainant in relation to the reasons why the loan was not granted. The case before the WRC is one of discrimination under the Equal Status Act and the complainant has to demonstrate that a prima facia case exists.  The respondent made reference to a number of cases in this regard and in particular Dublin Corporation v Gibney, EE4/1986 which described prima facia as “Evidence which in the absence of any convincing contradicting evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred”.  The case of Valpeters v Melbury Developments Limited ([2010] 21 ELR 64 was also referenced.

The complainant provided the hearing with a considerable amount of research and submissions in support of his case.  The respondent also provided a written submission. The WRC has no jurisdiction in relation to the application of various codes and Statutory Instruments which apply to the respondent’s operation. 

The complainant asserts that he was discriminated against on the ground of disability.  The initial burden of proof rests with the complainant to establish facts from which an inference of discrimination can be drawn. 

The applicable law:

Section 5(1) of the Equal Status Act 2000 provides: -

“5. –(1) 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 2 (1) of the Act defines what constitutes “a service” and “goods”:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes –

(a)    Access to and the user of any place,

(b)    Facilities for-

(i)                  Banking, insurance, grants, loans, credit or financing

(ii)                Entertainment recreation or refreshment

(iii)               Cultural activities, or

(iv)               Transport or travel,

(c)     A service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d)    A professional or trade service but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies.

Goods are defined in the Act as: “means any articles of movable property”.

There is no dispute that the complainant in this case sought to access a “service” of the respondent within the meaning of Section 2 (1) of the Act.

There is an onus on a complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service provided by the respondent that was available to the public generally and (b) that he was discriminated against on at least one of the stated grounds of discrimination.

The complainant has established that he sought to access the service provided by the respondent.  The complainant’s claim arises from the application of the respondent’s loan criteria and its consequential assessment of the complainant’s repayment capacity at the time of the application. The complainant asserts that he was treated less favourably in this loan application on the grounds of his disability.  The complainant is required to demonstrate that a prima facia case of discrimination exists.  I find that the complainant has not provided any evidence to support his assertion. In such circumstances I find that the complainant has not discharged the burden of proof and accordingly has not established a prima facia case of discrimination.

As the complainant has not established a prima facia case of discrimination, I find that the complaint fails.

Discrimination.  Prima facia case.