Complainant

Respondent

Parties

Sofiya  Kalinova

Permanent TSB  PLc

Complainant

Respondent

Anonymised Parties

Representatives

Cathy Smith SC                                Sinéad Lucey Solicitor                                                Free Legal Advice Centres

    Permanent TSB ER

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033792-001

15/01/2020

This matter came before me on foot of a complaint brought by the Complainant on the 15th of January 2020.

I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I indicated that hearings must now (and in the interests of transparency and in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. This presented no difficulty. It is noted that the giving of false statement or evidence is an offence.

The Complainant was legally represented. As the Complainant is deaf, her evidence was communicated through sign language which was then interpreted by Irish Sign Language Interpreters provided by the Workplace Relations Commission. The Complainant provided me with a comprehensive submission together with a comprehensive book of documents and I was grateful for the attention given to the presentation of same. The Complainant was cross-examined with the assistance of the said Sign language interpreters. Again, I would have to compliment the level of service provided by the interpreters and I believe that the Complainant was happy with how her evidence was presented.

The Complainant is completely deaf and communicates with the assistance of Sign Language Interpreters. She says the respondent discriminated against her on the Grounds of her Disability, when the Respondent refused to deal with her query over the phone in circumstances where the Complainant intended articulating her query with the assistance of an Interpreter. The Complainant says this blanket policy discriminated against her as it purported to place her in a “vulnerable” category which is an affront to her sense of independence. The Complainant has additionally alleged that there has been a failure to provide a reasonable accommodation despite opportunity and motivation being given by the Complainant.

The Respondent was legally represented, and a number of witnesses came forward on behalf of the Respondent. On the one hand the Respondent has taken the position that the Complainant was treated no differently than any other customer in a similar situation. On the other hand, the Respondent has also confirmed that it is actively seeking to determine if there is a method for interacting with customers in the Complainant’s situation, whilst also ensuring that legal and regulatory requirements are satisfied and customer information is protected.

The Respondent accepts that it is providing a service. It rejects that there has been “…a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

The Respondent asserts that the Complainant is offered reasonable accommodation when she was invited to attend the branch or use the website.

I have carefully considered the evidence adduced in the course of this hearing.

In the first instance, I have to recommend the excellent evidence offered by JS who is the Managing Director of the Irish Sign Language Interpreting Services (hereinafter the ISLI). Although he was called by the Complainant to give evidence, he gave a fair and unbiased account of those circumstances that might require the services that his facility provides. For the purpose of this hearing, this witness focused on the difficulties encountered by a person who is deaf when he or she needs to have a conversation with any service provider.  By way of solution, the ISLI  provides the Irish Remote Interpreting Services. This allows a video link to be set up to assist a deaf person to have a conversation with a service provider in the presence of an interpreter. In his evidence SJ indicated that he employs a panel of Remote Interpreters who will regularly be booked by a deaf person (or by a service provider) to be available to assist in a meeting between the deaf person and the service provider. A meeting may involve all three parties being on screen on a recognised platform - e.g. on Zoom or Webex. Equally, it is possible for the deaf person and service provider to have a face-to-face meeting with the Interpreter being on screen (laptop, desktop etc.) and watching the deaf person’s sign language. The single essential element is that the deaf person and the sign language interpreter have a clear line of vision to one another. The deaf person signs, the Interpreter interprets, and the service provider responds.

This service can be extended to the phone when the deaf person books an interpreter to be present  when the deaf person is making a call at a particular time. Where the deaf person and the interpreter are not in the same room, a two-way screen is set up between the Interpreter and the deaf person. This way the interpreter can relay the conversation between the service provider on the other end of the phone and the deaf person on the screen. As previously stated, so long as there is a clear line of vision between the deaf person and the interpreter any conversation can be had.

JS explained that Irish Sign Language is recognised as a native language of the State and that there is an obligation on public bodies to provide free interpretation so as to counteract the exclusion and marginalisation sometimes experienced by persons who are deaf. JS indicated that the ISLI strives to ensure that the very best quality of interpreter be made available to deaf persons in need of the service. The service is free to deaf people as there is Government funding. JS confirmed that the Respondent herein has engaged with SLIS since about 2019. It is essential to note, as JS explained to me, that a highly trained interpreter knows to convey exactly what is being said and to be accurate in delivery – right down to the correct tone being conveyed. An interpreter does not go off script and only ever conveys exactly what is said.

In her evidence, the Complainant confirmed that the service provided by the ISLI has been fantastic for her as she can get direct access to many organisations and facilities that it would be otherwise difficult to engage with. She uses the service regularly and has perfectly normal conversations with restaurants, Insurance companies and her General Practitioner etc.

The Complainant explained that she has a Bank account with the Respondent company. Generally, she can use their Open 24-hour online Banking Service App to conduct most transactions. However, over the summer of 2019 she ran into difficulty with her password and needed to have a conversation with someone in the Respondent Bank. She believes that her only option was to have conversation with an Open 24 agent specifically tasked with answering issues for this particular service. The Complainant described how she booked a slot with an interpreter and together they waited for the automated service to pick up the call. When the call was connected, the  Interpreter explained her role and indicated that she was in the presence of a Bank customer. The Agent stalled. The Complainant was moved from this initial Agent to a specialised team, and then to a Manager who eventually confirmed that the Bank could not do business with her through a third party. The Complainant tried to explain that this was not a third party but an Interpreter. The Complainant was not asked any security questions. I understand that the Complainant was repeatedly described as a “vulnerable” customer in this process.

The Complainant was deeply disappointed that she was not allowed to proceed with her business especially in light of the time and effort it took for her to get to that point (booking and liaising with the interpreter service etc.). In particular, the Complainant takes exception to the notion that the Interpreter speaks on her behalf. This is a misunderstanding and is incorrect as the role of the sign language interpreter is to give voice to the specific communication. She wrote an email of complaint. By way of reply, the Respondent wrote back on the 21st of August 2019 stating that Open 24-hour online Banking Service Agents do not communicate through third parties regarding Customer Accounts and will only talk to the named Account Holder. As an alternative the Complainant was advised that she could come into the Branch with valid photo ID. I accept that this time-consuming alternative is not always practical or convenient, nor does it overcome the fact that the Complainant is being singled out as different.

It is noted that the Bank (by Central Bank direction) can deal directly with third parties when it comes to matters of arrears.

The Respondent did in the same letter state that this matter has been brought to the attention of management to identify “any feasible amendments that can be made to the procedure that is currently in operation”. Taking some comfort in this last assurance, the Complainant repeated the process of contacting the Service provider (in the company of her pre-booked interpreter) in October of 2019. To her disappointment there had been no change in policy. Again, she never got to discuss her issue with the service provider, the conversation stalled the moment a third party was identified. 

The Complainant raised the issue through the ES1 form and, not being satisfied with the response, she issued the Workplace Relations Complaint Form on the 15th of January 2020. Over and above the allegation of discrimination,  the Complainant specifically makes the case that the Respondent has not made reasonable accommodation to ensure she, as a Deaf Person and a customer, has the full access enjoyed by non-deaf people to the Services provided. The Complainant says this blanket policy discriminated against her as it also purports to place her in a “vulnerable” category which is an affront to her sense of independence. The Complainant has additionally alleged that there has been a failure to provide a reasonable accommodation despite opportunity and motivation being given by the Complainant lodging her complaint and ES1.

The Complainant gave evidence of another Bank giving her access in the manner sought. Having asked a few security questions, this second Bank goes on to deal with her query.

Mr. GK on behalf of the Respondent confirmed that the Open 24-hour online Banking Service only allows for communication between the Account Holder and the Agent. He gave evidence that there have been incidents in the past where Third parties have gotten personal details and perpetrated Fraud. The Bank is wary therefore of not wanting to not dea directly with the named party/Account holder. GK indicated that a deaf Person is treated no differently than anyone else communicating through a third party. No third party can act for and on behalf of any customer of the Bank. The best practise is to attend in the Branch so that officials can verify with ID and other checks. The Complainant has pointed out that even if she found the time to regularly present at her Bank, the issue of having an interpreter would still exist. She quite simply has to communicate with an interpreter.

GK – a Senior Manager in the Bank - did also indicate that the Respondent has engaged with the Irish Sign Language Interpreting Services (and the Remote Interpreting Service) since October 2019 regarding this particular issue. He said that this was triggered by the Complainant’s observations, and he gave assurances that there is a very real desire to effect change. The Open 24 management team have engaged with the Bank’s Data Protection Team and with the Bank’s Information Technology Security Governance team in this regard.  The Fraud Department are closely watching any proposed changes as the risk of Fraud is high, so there is an obligation to work with them as well as with the Remote Interpreting Service. I have been told in the course of evidence, that the Bank’s telephone providers have also been brought in to consider the issues raised. A report has been prepared known as the “integrity 360” consultancy paper.

GK regretted the use of the word “vulnerable”. I would suggest it is not an appropriate descriptive to give to anyone, least of all someone as formidable as the Complainant. It became clear in his evidence that the Bank was more concerned about Fraud than issues of Data Protection which an objective onlooker might have thought was the problem.  MS gave evidence in this regard. MS has operated in the Financial Crime and Fraud Prevention Unit for up to seven years. The primary strategy is to validate the Customer’s Identity directly through security questions. In approaching the issues raised by the Complainant, the Bank has determined that an appropriate (security conscious) consent form needs to be created and signed off on. MS has said that since the Complainant’s issue came to light the Respondent has been actively looking at ways to make reasonable accommodation. For example, he has engaged with the Remote Interpreting Service and has had a positive workshop with them. There is, he says, a challenge to try and make the reasonable accommodation without creating a risk, indeed a “High Risk”. The evidence is that there is ongoing collaboration between the stakeholders to bring the intended processes into place. I note that the Covid Pandemic has greatly impacted the pace which had been impressive in the initial stages. feature

The Respondent accepts that the Complainant has been inconvenienced. In recognition of that fact the Respondent is hoping to implement measures to ameliorate that inconvenience. In the meantime, however, the Respondent is making the case that a reasonable accommodation has been offered i.e. to present at a branch.

The Respondent has asked that I might consider Section 15(1) of the Equal Status Act which outlines instances where a service provider has good reason to believe that providing goods or services may lead to a risk of criminal activity but I do not see it’s relevance to the individual case.

On balance, I am satisfied that the Complainant has made out a Prima Facie case. There can be no doubt that the Respondent is providing a service. The Complainant has been unable to avail of a specific aspect of the overall service provided by the Respondent by reason of the fact that she is deaf. The Complainant herself has presented a solution but this solution has been dismissed as high risk. I accept the Complainant has correctly drawn parallels with the facts that pertained in the case of John Maughan  -v-  The Glimmer Mann Ltd (S2001-020) where the Equality Officer accepted that:

“…allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service.”

The Complainant asserts here that the ISL interpreter is an essential aid to the deaf person in the same way as the guide dog is for a blind person. I cannot disagree. The failure of the Respondent to take this on board has amounted to an indirect discrimination on the grounds of disability.

I accept that service providers do not always design their services with the needs of persons with disabilities in mind.  However, there is an obligation on the service provider to provide reasonable accommodation in certain circumstances. There can rarely be a blanket policy of refusal. The failure to provide reasonable accommodation can, of itself, constitute discrimination.

The Act recognises that sometimes a person with a disability might need “special treatment or facilities” to avail of a service. To my mind this is a very important detail as it appears to deal with the individual person’s specific circumstances as presented.

The point is that the Complainant herein is looking to be accommodated. The Respondent has, by way of response, sought to look at the bigger picture of figuring out a way of accommodating all deaf people. This is a very laudable response and I sense a very real willingness on the part of the Respondent. However, whilst I am sure that the Complainant has no objection to other deaf people being provided with reasonable accommodation as a consequence of her action, the fact remains that the Complainant has not brought some sort of class action for the greater good. The Complainant has personally brought this matter before the WRC arising out of her own concerns and difficulty. I do not understand why some sort of bespoke arrangement has not been agreed directly with her in the intervening period prior to this matter coming before me. I am conscious that the complaint form issued in early 2020.

It is not for me to direct how such a bespoke arrangement would work, though I can think of a myriad of ways that the Bank could have agreed a way forward with this one customer. At the very least, the appointment of an employee with liaison status with whom the Complainant was at liberty to communicate with directly. Such a relationship would allow the Complainant to have direct email contact. I would envisage that if the Complainant indicated a need to talk (through an interpreter) with an Agent or other member of staff the appointed liaison employee would take whatever steps were necessary and sanctioned (on a bespoke basis) to ensure this individual and her interpreter got the access to the services she needed. This, I would consider to be a modest but helpful intervention.

The Complainant has been discriminated against on the grounds of her disability. As an undoubtedly strong and independent person I accept that the thoughtless categorisation of her as being vulnerable has had an impact. I also accept that the Respondent has failed in it’s obligation to make reasonable accommodation to this lady when the need arose. She has been greatly inconvenienced. I would note that it is surprising given the fact that sign language is a recognised language of the state that this issue has not arisen before now. I any event, I am minded to award redress for the prohibited conduct. I would hope that Respondent would make accommodation along the lines I have described or listen to any suggestions the Complainant might make in this regard.

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

CA-00033792-001 In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant and in the circumstances, I award €8,500.00.