Complainant

Respondent

Parties

Adetokunboh  Olanrewaju

Glanmire and District Credit Union Limited

Representatives

  Self-Represented

 Mr Brian Hallissey BL instructed by Fiona Twomey Solicitor.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053926-001

29/11/2022

The Complainant is of Nigerian heritage and submits that the details of his loan account were sent to the Central Credit Register (CCR)  in September 2019 by the Respondent Credit Union and that this action was prohibited conduct under the Equal Status Acts 2000-2015 (the Acts) on the grounds of race because he believes no other sensitive personal account material of white members of the  Respondent credit union were sent to the CCR at the material time.

The Respondent disputes the claim and argues that evidence will be produced to show that there is  a statutory duty on the Respondent, and all financial institutions  since 2017 to furnish the CCR with details of all outstanding loans of all members regardless of the race grounds,  and that the Complainant’s case is based on a misreading of a letter from the Respondent. 

The Complainant gave evidence of taking out a loan with the Respondent and having a topping up facility which he had covered with insurance protection should he fall ill. He subsequently became ill, and the repayments were paid by the insurance company. However, when he applied for a credit card in late December 2019, he was shocked to discover that the credit card company informed him, that upon checking with the CCR, they found his credit rating did not satisfy their criteria and his application was refused. Upon further enquiry the Complainant established that the Respondent had given his account details in September 2019 to the CCR. By his own admission, the Complainant is basing his case on a letter from the Respondent’s Governance Manager, Suzanne O’Neill, with the office of the  Data Protection Commissioner of 29 January 2021 where Ms O’Neill specifically  states in a sentence:

“Please note that from September 2020 we are only reporting our members information to CCR.”

The Complainant believes these words indicate, that since his information was given to the CCR in December 2019, and the commencement of giving information on other members did not happen until September 2020, that he was picked out unfairly and that this was discriminatory action on the basis of his race. He particularly refers to his name which he suggests gave an indication to the Respondent of his African heritage.  

The Respondent submits that since the enactment of the Credit Reporting Act 2013 there has been an obligation on all financial institutions to submit details of all outstanding loans over €500 to the CCR since 2017. The Respondent submits that the Complainant misread the letter from Ms O’Neill and that evidence will be produced to show that the details of all outstanding loans of all members have been submitted to the CCR since 2017, and not just the Complainant’s loan.

Summary of evidence of Suzanne O’Neill, Governance Manager:

The witness produced sample documentary evidence from 2017 of numerous accounts, suitably redacted, to show that it was, and is, the statutory duty of the Respondent to give such details of all outstanding loans to the CCR. The witness explained that the details of all members  outstanding loans have to be submitted – the only criteria being that they are over €500. The witness accepted that the letter referred to by the Complainant was written by her but that the preceding sentence to the sentence relied upon by the Complainant, puts the matter in context. To be understood fully the witness indicated it should be read fully as follows:

 “We are legally obliged to report details of all members loan borrowing of GDCU to the ICB/CCR. Please note that from September 2020 we are only reporting our members information to CCR.”  

The witness stated that from 2017 to 2020 the details of loans were being sent to the CCR and the Irish Credit Bureau (ICB). From September 2020 to present, the details are going to the CCR only. The witness stated that the Complainant had read this incorrectly to suggest that only his loan details were reported in 2019, and not all the members loans, as was the case.

The Respondent CEO gave evidence in support of the statutory obligations imposed on the obligations owed to the CCR by the Respondent.

The Applicable Law:

Section 3 (1)(a) of the Acts provides:

"For the purposes of this Act discrimination shall be taken to occur-

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the 'discriminatory grounds') which- exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned"

The relevant discriminatory grounds are set out in sub-section (2) of Section 3, in its relevant part states:

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”

The Burden of proof provision of the Equal Status Acts 2000-2015 at section 38A provides

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant under equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Graham Anthony & Company Limited v Mary Margetts EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

In order for the burden of proof to shift to the Respondent, the Complainant must first establish prima facie: (1) that he was of certain ethnic background, in this case Nigerian, (2), that his outstanding loan details alone, and not those of the predominantly white membership of the Respondent Credit Union, were submitted to the Central Credit Register (CCR) at the material time.

The uncontested documentary evidence in this case was that all members with outstanding loans in the Respondent Credit Union had details of those loans submitted to the CCR from 2017, as a matter of law, along with the Complainant’s details, regardless of race and ethnicity. Copies of the evidence were provided to the Complainant at the hearing.  The Complainant gave no evidence to the contrary. It was clear to me that the Complainant misconceived the complaint of discrimination arising from a misreading of a communication between the Respondent and the office of the Data Protection Commissioner where he assumed that his account details only, and not the details of anyone else, were submitted in the material time between December 2019 and September 2020.

In conclusion, the Complainant came to this case with mere speculation and assertions, as cautioned against in Valpeters.  A reading of the particular sentence in isolation in   the document which the Complainant relied upon, understandably led him to be believe that he alone was been targeted. However, the previous sentence gave a context to the assertion in the letter. The clear evidence of records which were produced by the Respondent shows that the details of all outstanding loans of all members were submitted to the CCR from 2017, and not just the details of the Complainant’s loan. To do otherwise would have been in breach of the Respondent’s legal duties as a lender in the financial sector.   I therefore conclude that that the Complainant did not establish a  prima facie caseof discrimination  and find that the Respondent did not engage in prohibited behaviour under the Acts.

For the reasons outlined above I hereby decide that the Complainant did not establish a prima facie caseof discrimination. Therefore, I find the Respondent did not engage in prohibited conduct under the Acts.

Equal Status Acts 2000-2015, Race,