Complainant

Respondent

Parties

Kim  Doyle

Prison Service Credit Union Limited

Representatives

  Kate Dempsey

Barry O’Donoghue Ferrys Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041226-001

22/11/2020

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

CA-00041231-001

23/11/2020

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

CA-00041239-001

24/11/2020

The complaint concerns alleged discrimination on the disability ground in the matter of a loan application, contrary to the provisions of the Equal Status Act [2000-2018]. The Respondent disputes and rejects the complaint on the basis of objective justification and that the Complainant was treated no differently to any other loan applicant in similar circumstances.

The Complainant was administered the oath/affirmation and thereafter gave her sworn evidence. She stated that she was a serving Prison Officer and member of the Prison Service Credit Union (PRISCU) for the last eleven years. The Complainant stated that she was on sick leave from work due to a workplace assault in May 2017. She stated that she came within the definition of disability pursuant to the Equal Status Act [2000-2018] and she provided medical reports in support of her position that regard. The Complainant also cited medical reports from the sector’s Chief Medical Officer that she was fit for duty.

The Complainant gave details of her financial position including a loan she applied for in 2017. The Complainant stated that she was a consistent saver with PRISCU/the Respondent and had an impeccable financial history. At the time of her loan application in 2020, the Complainant stated that she was in receipt of a pension related payment from her employer as she was still in service – ie Temporary Rehabilitation Pay (TRR) and income protection which together brought her income to 75% of her pre sick leave salary.

The Complainant stated that on the 31st July 2020 she made an online application to the Respondent for a loan of €35k. For this purpose, she submitted her last three payslips and three recent income continuance payslips which showed that she was in receipt of TRR – which payment is only made to an employee on sick leave. The Complainant stated that she also submitted three months bank statements and that she confirmed on the application form that she wished to have her husband’s income taken into account for the purpose of the loan as he was also a member of PRISCU.

On 4 August 2020, the Complainant telephoned the Respondent to follow up on her loan application. She was transferred to the CEO who asked her if she was off work on sick leave. In that regard, the Complainant outlined her telephone calls of  @9.33am and 10.06am on 4 August 2020. She stated that she was asked “are you out of work sick”. She stated that she was not given a chance to have her financial details considered. She stated that when she spoke with the Respondent’s CEO he was “busy” and “irritated” and was not “supportive” or “helpful”. She stated that he asked her if she was fit for duty and she stated that she considered that she was and would have answered accordingly. The Complainant stated that she was surprised by this question as the CEO knew she was on income continuance from 2019. She stated that she answered the question and that the CEO replied “in no uncertain terms that [her] loan application was declined for that reason”.

The Complainant submits that this refusal constituted discrimination on the disability ground by virtue of the fact that she was on sick leave  and that the Respondent’s decision failed to take account of her ability to repay the loan, her previous and continuing healthy financial track record with the Respondent and her husband’s income. The Complainant further maintained that the Respondent provided no supporting evidence for its refusal decision including with respect to their decision that she failed to demonstrate an ability to repay the loan. The formal rejection letter dated 4 August 2020  stated as follows:

“As you are out sick & off payroll you go against our policy. Having completed your assessment you have not demonstrated your ability to repay this loan (income continuance has been taken into account)”

The Complainant maintained that the discrimination continued following the initial refusal of August 2020 and that she was being treated differently to other members of PRISCU - in particular with reference to her risk assessment form which showed a deficit of €1300/month in her finances which she stated she only received after the initial refusal - ie with the Respondent’s Form ES2. In terms of the method of financial risk assessment, the Complainant maintained that it was wrong and incorrect to attribute “100% of the costs of running the familyhome to [her] income alone”.

The Complainant maintained that she did not get any or/adequate answers to the questions asked on her Form ES1. The Complainant also maintained that the Respondent’s policies in relation to its loan applications were not transparent or provided to members and that its website did not have sufficient information. In particular the Complainant stated that she was never furnished with the Respondent’s revised loan application form which unbeknownst to her was considered as part of her unsuccessful internal appeal of her loan refusal. The Complainant also recounted a telephone call with the Respondent’s Compliance Officer who she stated suggested that she look for a lesser amount of money given that she was out of work and also had two children e.g. €10,000 or that in the alternative, her husband could apply for the loan in his name. The Complainant maintained that this was discrimination on the grounds that she was a working mother.

In terms of her sick leave, the Complainant distinguished between being out of work and “unable to carry out normal duties”. She stated that she is still in service, that she has been promoted whilst on sick leave and has every expectation of returning to work. The Complainant explained that her return had been delayed by two maternity leaves and that Covid-19 had delayed her treatment for her 2017 assault particularly with respect to the injury she suffered to her knee and back. She also stated that the Chief Medical Officer (CMO) for the sector had deemed her fit to return and that the Respondent had failed to take this into account.

Under cross examination it was put to the Complainant that she was being semantic and was maintaining two irreconcilable positions namely – on the one hand being fit for work whilst in reality being on sick leave. In reply, the Complainant maintained that the CMO had certified her fit to return to work, that she was fit for duty but that her return had been prolonged by delay in her treatment which was outside her control. She explained that she was entitled to income continuance payment as there was a reasonable prospect of her return to work. It was put to the Complainant that she had completed the loan application form incorrectly and she disputed this on the basis that she had answered the truth and facts as she understood them. In response to a question about the Respondent lending to sick members, the Complainant accepted that this occurred but on a limited basis. It was also put to the Complainant that her husband’s income would not have been considered in circumstances – where as the main applicant – she did not qualify for the loan of €35k  under the Respondent’s insurance policy and the Complainant accepted this.

The Complainant introduced her Witness - a fellow Prison Officer who was member of PRISCU/the Respondent and his local credit union. The Witness was administered the oath/affirmation and thereafter he provided his sworn evidence. The Witness stated that he was refused a loan by the Respondent because the amount sought was too high and because he was on sick leave and in receipt of income continuance. The Witness stated that he was told he would have to wait till his salary deductions recommenced. He stated that he had submitted payslips to show that he could repay the loan. The Witness gave evidence that he then applied to his local credit union and got the loan he was seeking as it was deemed he had the ability to repay and insurance was not an issue. The Witness also gave evidence that he unsuccessfully sought to obtain a copy of the Respondent’s insurance policy.

The Witness was cross examined on his evidence and he accepted that at the time of his loan application to the Respondent he was not fit for work and was on long term sick leave. Under cross examination, the Witness stated that the CMO had deemed him unfit for work and he accepted that if he was deemed fit then he would return to work.  The Witness also accepted under cross examination that the Respondent’s interest rate was lower than his local credit union and was therefore beneficial to members.

It is the position of the Complainant that the refusal of her loan application was not based on her ability to repay the loan which should have been the only criteria, that her income was not a factor but that in reality the decision was made on the basis of one criteria – namely, that she was on sick leave from work. The Complainant maintained that she was a working member for the purposes of the Respondent’s insurance policy albeit “not actively at work”. The Complainant further stated that she was subjected to abuse, unfair and unreasonable treatment in the course of her dealings with the Respondent. She stated that she was treated differently to any other member, that her risk assessment was harsher, that the limits to the loan amounts for people in her situation on sick leave was discriminatory and that she was never furnished with the terms of the Respondent’s policies. The Complainant stated that the Respondent’s refusal to take her husband’s income into account was also unreasonable. The Complainant maintained that she was “being financially punished for being injured in [her]workplace”. The Complainant also outlined the upset and stress she has suffered as a result of the treatment and the impact on her reputation.

The Respondent outlined its background and governance structure. It stated that the Complainant sought a loan of €35,000 by submitting an online application form which it stated contained false and misleading information in relation to her fitness for work in terms of her statements that she was “in good health” and “fit to follow normal occupation”. The Respondent stated that by virtue of the fact that the Complainant was not at work and was not regularly performing all the usual duties of her occupation, that the €35,000 loan would not have been covered by its insurance policy and accordingly, the loan would never have been authorised. In this regard, the Respondent explained that its insurance policy provides life cover on loans in excess of €5000 to working members which does not apply to members who are in service - ie. not retired - but who are not actively at work and are not regularly performing all the usual duties of their occupation. The Respondent stated this was standard insurance policy across the Credit Union sector. The Respondent stated that it's very firm policy in such circumstances was not to advance a loan of more than €5000 unless the loan was insured or unless the member had sufficient shares in his/her account as collateral backup.

The Respondent stated that because the Complainant’s loan application stated that she was fit to follow her normal occupation, its Loans Officer commenced a standard risk assessment with regard to her loan application which deemed that she did not meet the required capacity to repay the loan. In this regard the Respondent stated that when it reviewed the supporting documentation submitted by the Complainant with her application, it became aware that she was in receipt of an income continuance payment and that she did not meet the criteria of a “working member” under its insurance policy. The Respondent stated that it applied its risk assessment analysis to the Complainant’s application in the very same manner as would have been applied to any other member in similar circumstances. The Respondent further stated that the Complainant’s husband’s income could have been assessed in order to demonstrate an ability to repay the loan – given that he was also a member of the Credit Union – however this did not arise as the loan sought by the Complainant was not insurable. The Respondent stated that subsequently it informed the Complainant that she could seek a loan of €10,000 on the basis that the first €5000 would be the maximum it would lend on an uninsured loan but that she could have secured an additional €5000 using her share balance as collateral. Alternatively, the Respondent advised the Complainant that it was open to her husband to apply for the loan of €35,000 in his own name and the Complainant’s income could be taken into account for the purpose of the risk assessment analysis.

The Respondent stated that it strictly adheres to its lending procedures and policies, that it takes a cautious and prudent approach to lending given that it is dealing with members funds and that it operates under a strict legislative regime, under the supervision of the Central Bank of Ireland and that it applies the ‘Insolvency Ireland Reasonable Living Expenses’ criteria. As a result and since its establishment, the Respondent stated that it has developed into one of the most financially viable credit unions in Ireland with a loan book of approximately €40 million representing a loan to asset ratio of 66% compared to the sectoral average of 27% coupled with a very low bad debt rate. In the previous year it stated it had approved almost €16 million worth of loans which it stated represented 94% of all loan applications.

Summary of Respondent’s Sworn Evidence:

Witness 1 was a representative of the insurance company Cuna Mutual Group Services Ireland. He gave evidence in relation to the insurance provided by his company to a number of credit unions including the Respondent. He outlined the benefit of the policy to the Respondent in terms of reducing its exposure to bad debts as in the event of the death of a loan applicant his/her outstanding loan balance is covered by the insurance. Witness 1 stated that his company provides insurance cover at the point of a loan sale and this is paid for by the Respondent. He stated that the policy does not require any health declarations but the loan applicant must be a working member performing his/her usual duties. He stated that the policy applies to all loans in the same manner save that the maximum amount insured is reduced where the applicant is over seventy years of age.

Witness 1 was cross examined by Ms Dempsey on behalf of the Complainant in relation to insurance which may be provided to other credit unions and in relation to what constitutes performing normal/usual occupational duties. In relation to the publication of the policy, Witness 1 stated that the general/broad terms of the policy would usually be published on websites but not the full text of the policy. In response to further questions he stated that the policy does not preclude loan applicants who are on sick leave but the amount insured is capped at €5k.

Witness 2 was the CEO of the Respondent. He stated that he had worked for the Respondent for 25 years and outlined his position as  Senior Loans Officer. Witness 2 outlined the Respondent’s lending criteria, its policy on calculating reasonable expenses and the role of its Board of Directors. Witness 2 outlined the benefits for the Respondent’s members in adopting a prudent and conservative approach to lending in terms of being able to provide a low interest rate for borrowers and keeping arrears and bad debts to a minimum. Witness 2 stated that following the Complainant’s loan application on 30 July 2020 and based on the information provided, a risk assessment report was automatically generated. He stated that in accordance with standard operating procedures, the loan applicant/ie Complainant is fixed with the entire expenditure of his/her household. He further stated that when he checked the salary documentation provided and became aware of the income continuance payment to the Complainant, he was of the view that she was out of work and therefore that the amount of the loan applied/€35k for would not be covered by the Respondent’s insurance policy.

Witness 2 outlined that when the Complainant telephoned the Respondent’s office on 4 August 2020, the initial person she spoke to was upset as a result and “reduced to tears”. He stated that he then spoke to the Complainant and asked if she was on sick leave but couldn’t get an answer. He stated that he found the Complainant “aggressive”. Witness 2 outlined the documentation he furnished to the persons dealing with the Complainant’s appeal and stated that he had no more dealings with the matter after the Complainant appealed the decision.

Witness 2 was cross examined. In reply to various questions he clarified that there were two reasons the Complainant was refused her loan application of €35k – namely as a result of the Respondent’s insurance policy and inability to repay. Witness 2 was questioned on the alleged failure of the Respondent to publish the details of its lending and insurance policy on its website. In reply he stated that the lending criteria was published on the website and that while there is a reference to its insurance policy the full details of the policies were not published. He accepted that the Complainant would not have known about the €5k insurance limit when she applied for the loan and that she had not been provided with a copy of the Respondent’s lending policy as it was a commercially sensitive document. Witness 2 also clarified that there were no previous issues with the Complainant as a member in terms of her savings or the repayment of any previous loan. In response to questioning that there was no mention of insurance in his refusal letter to the Complainant of 4 August 2020, Witness 2 stated that the letter contained the statement “As you are out sick and off payroll you go against our policy”. In response to further questioning, Witness 2 distinguished between credit union deductions from payroll and the payment which was being received by the Complainant whilst she was on sick leave. Witness 2 stated in response to further questioning, that had the Complainant indicated on her application form that she was not at work, a risk assessment would not have been carried out at all.

It was put to Witness 2, that the risk assessment was only conducted after the refusal of the loan in order to justify the refusal. Witness 2 rejected this on the basis that the date of 12 August 2020 appearing on the bottom left-hand corner of the risk assessment report denoted the date the report was printed and not when it was created and similarly with a further printing of the report on 29 September 2021. Under cross examination, witness 2 explained that in addition to the Complainant’s original loan application form, he also submitted an internal revised loan application form with the appeal documentation the purpose of which he stated was to correct the  original form in relation to the Complainant’s work situation – i.e. that contrary to what the Complainant had indicated on her application form, she was not performing her normal work duties at the time of the loan application. Witness 2 accepted that at the time of the appeal this internal/revised loan application form was not provided to the Complainant.

It is the position of the Respondent that it did not discriminate against the Complainant either directly or indirectly and that it did not victimise or fail to accommodate her. Further, the Respondent maintained that it treats all members equally and that the Complainant had not produced any comparative evidence to support her position that she was treated differently. The Respondent rejected the Complainant’s assertion that it did not loan to members on sick leave and stated that members on career breaks were treated similarly. However, the Respondent also stated that it had learned a lot from its dealings with the case and that going forward it would include more detail in loan application refusal letters. Whilst it acknowledged that improvements would be made in terms of handling any future similar cases, the Respondent maintained that its lending criteria would not be changed as it was based on strong and prudent financial management. Lastly, the Respondent cited Section 5(2)(d) of the Equal Status Act [2000-2018] which it submitted allows for differences of treatment in respect of insurance policies and risk assessments. 

Section 2 of the Equal Status Act [2000-2018] defines disability as follows:

“disability” means –

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”.

Section 3(1) of the  Act provides that 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)…..which ­­­---

(i) exists,

(ii) existed but no longer exists,

(iii) may exist into the future, or

(iv) is imputed to the person concerned,….”

Section 3(2) outlines the grounds of discrimination as may occur between any two persons and in that regard, subsection 3(2)(g) provides as follows:

“ that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”)”

Section 5 (1) of the Equal Status Act [2000-2018] provides that “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 “service” as “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 use 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……”

Section 5 (2)(d) of the Equal Status Act [2000-2018] provides that discrimination shall not apply in respect of:

“(d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk (other than on the gender ground…..) where the treatment –

(i) is effected by reference to –

(1) actuarial or statistical data obtained from a source on which it is reasonable to rely, or

(11) other relevant underwriting or commercial factors, and

(ii) is reasonable having regard to the data or other relevant factors,….”

Section 38A (1) of the Equal Status Act [2000-2018] provides as follows in relation to establishing the burden of proof:

“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.”

The import of Section 38A(1) is that it requires the Complainant – in the first instance - to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Accordingly,  the Complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination. In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Cork City Council v McCarthy EDA 21/2008, this Labour Court stated:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The issue for decision by me is, whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of sections 3(2) of the Equal Status Act [2000-2018]. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation and the various exchanges of correspondence between the Complainant and the Respondent including in relation to her complaint and internal appeal, as well as the evidence at the hearing. Notwithstanding the provisions of Section 5(2)(d) of the Act, in the interests of completeness, I propose to consider the following key questions:

1)      Did the Complainant have a disability?

2)      Did the Respondent, at the material time, know she had a disability?

3)      Was she refused a service/discriminated against because of her disability?

4)      Was the Complainant treated less favourably than another in a comparable situation?

From the evidence and submissions I am satisfied that the Complainant suffered an injury at work and that she was on sick leave from work as a result. In her sworn evidence she stated that she came within the definition of disability pursuant to the Equal Status Act [2000-2018]. In that regard I have considered her various medical reports and particularly the report of 20/5/21 which outlines her ongoing treatment. At the same time the Complainant maintains the position that her medical evidence also shows that she was fit for work – for example per her redacted medical letter of 31/8/2021 – and that she was a “working member” of the Respondent though “not actively at work”. The Respondent submits that the Complainant has presented two irreconcilable positions in relation to her disability. This issue was the subject of extensive questioning in the course of the adjudication hearing. In all the circumstances I have come to the conclusion that at the material time – ie in July/August 2020, the time of the loan application - the Complainant was suffering a disability as a consequence of her 2017 injury. Accordingly, I am satisfied that she comes within the definition of disability for the purpose of pursuing her case under the Equal Status Act [2000-2018]. I am also satisfied that in July/August 2020 the Respondent was aware or should have been aware that she was suffering a disability as it is a central point of its case that the Complainant was on sick leave from work and in receipt of income continuance payment.

The kernel of the dispute between the Complainant and the Respondent is the reason why she was refused a loan of €35k. The Complainant maintains that the refusal was solely due to her being on sick leave whilst the Respondent has argued that its insurance policy does not cover loans to persons off work in excess of €5k and that its risk assessment process demonstrated an inability to repay. Having carefully considered the submissions and sworn evidence, I am of the view that the Complainant was not refused a service/discriminated against because of her disability. In that regard, I am persuaded by the evidence of the Respondent that it operates a prudent and conservative approach to lending a central plank of which is to ensure that large loans are covered by insurance in the event of default so as to protect its members funds. I am further satisfied that the Respondent loans to persons on sick leave but on a limited basis within the €5k insurance maximum and that for the same reason it applies similar limitations to other members – eg members on career break.

The Respondent’s evidence is that at the time of the loan application the Complainant was not a working member as she was on sick leave and that it was alerted to this through the Complainant’s documentation confirming she was in receipt of income continuance payment. This matter was extensively traversed in the course of the adjudication hearing particularly with regard to the original and the internally revised loan application forms.   The Respondent’s Witness 2 gave evidence in relation to the Respondent’s insurance policy and I note the following definition contained in the policy:

“A working member shall be an eligible member for inclusion within the insured class of members only upon the condition that such member is actively at work and regularly performing all the usual duties of their occupation.

A working member who is not eligible for coverage on the lawn date shall become eligible and be included within the insured class upon meeting the conditions that they are actively at work and regularly performing all of the usual duties of their occupation.

A working member absent from work on the loan date because of redundancy, unemployment or other lack of work, strike or holiday, shall be eligible for inclusion within the insured class provided such a member is then actively looking for work and is physically able to be at work full-time and regularly perform all the usual duties of their occupation.

A working member absent from work on the loan date, due to an insignificant illness or injury and who returns to work within 14 days from the loan date shall be eligible for inclusion within the insured class.”

I am of the view that the Respondent was entitled to interpret “working member…. actively at work and regularly performing all the usual duties of their occupation” on the basis of the plain and ordinary meaning of those words – ie someone who is actually carrying out their scheduled duties at work. The Respondent would not have had access to the Complainant’s medical reports and in any event, the Respondent is not a medical expert and would not be expected to interpret medical reports in order to draw purported distinctions between fitness for work and not actively at work.  In the circumstances I am of the view that the requirement to have the loan amount insured was the primary and objective reason for the loan refusal and not the Complainant’s disability.

In addition, I am not satisfied that the Complainant has demonstrated that she was treated less favourably than another person in a comparable situation. In Catholic University School V Colm Dooley [2010] IEHC 496, the High Court stated that “There is no dispute between the parties that a claimant is entitled to choose their own comparator. The question is whether thecomparators chosen by the claimants are appropriate”. The Witness put forward by the Complainant gave evidence in relation to obtaining a loan from a different credit union but his evidence in relation to the Respondent showed that he was treated in a similar manner to the Complainant. No doubt there are variations between credit unions in relation to their lending and insurance policies – and the evidence was that the Respondent’s insurers did not cover all credit unions. In my view, this Witness was not an appropriate comparator for the purpose of demonstrating differential treatment of the Complainant by the Respondent on the disability ground. Accordingly, I am not satisfied that the Complainant has demonstrated differential treatment by the Respondent such as to constitute discrimination within the meaning of Section 3 of the Equal Status Act [2000-2018]. By the same token, I am not satisfied that the Complainant has shown differential treatment on the disability ground in relation to the conduct of the risk assessment process – and particularly with regard to the calculation of reasonable expenses where the primary borrower is fixed with all of the household expenses for the purpose of calculating ability to repay. Whilst it may very well be true that the Complainant had an ability to repay a loan of €35k, no evidence has been presented to me that in the calculation of risk assessment process the Respondent treated the Complainant less favourably as a result of her disability, than any other member.

In relation to the provision of reasonable accommodation within the meaning of Section 4 of the Equal Status Act [2000-2018], I am satisfied that the Complainant was not refused a service – instead her access to loan amounts was limited on grounds other than her disability. For that reason, I consider that the Respondent did not fail to provide reasonable accommodation to the Complainant.

Section 3(2)(j) of the Equal Status Act [2000-2018] provides that discrimination on the victimisation ground shall be taken to have occurred where a person is treated less favourably than another because he/she:

“(i) has in good faith applied for any determination or redress provided for in part 11 or 111,

(ii)has attended as a witness before the Authority, the adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act,or

(v) has given notice of an intention to take any of the action specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”)”

In my opinion, the Complainant has not demonstrated that she was victimised within the meaning of Section 3(2)(j) of the Act following any action on her part as specified in the foregoing subsections (i) – (v).

In all the circumstances, I am satisfied that the Complainant has failed to establish a prima facia case of discrimination on grounds of disability.   Accordingly, I am satisfied that the complainant was not discriminated against by the Respondent on the disability ground.     In addition, I am satisfied that the Complainant was not victimised by the Respondent contrary to section 3(2)(j) of the Equal Status Act [2000-2018] and nor was she refused reasonable accommodation as provided for in section 4 of the Act.

Whilst I have found that the Respondent did not discriminate against the Complainant, I wish to add that there are a number of practical matters in relation to the handling of the Complainant’s application for a loan which rendered the process all the more stressful and upsetting for her. There was no dispute between the parties that the Complainant had a very healthy track record with the Respondent in terms of savings and repayment of loans and that she was a diligent and valued member. Her absence from work was through no fault of her own. In going forward, I would urge the Respondent to act on the assurances it gave in the course of the adjudication hearing in terms of reviewing its handling of this case with a view to making improvements in its communications with members, in providing for more transparency – in so far as is practicable - with regard to its policies/practices, in ensuring that all documentation is furnished to a member pursuing an internal complaint or appeal and in including more information in loan application refusal letters.

CA-00041226-001

CA-00041231-001

CA-00041239-001

For the reasons outlined, I decide these complaints are not well founded.

Discrimination, Victimisation, Comparator