Complainant

Respondent

Parties

Adrian  Caulfield

The Governor and Company of the Bank of Ireland also know as Bank of Ireland Group Bank of Ireland

Representatives

  N/A

Maeve Griffin Fieldfisher

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042768-001

01/03/2021

The Complainant stated that he was discriminated against on the grounds of disability and civil status because the Respondent refused to allow him open a business bank account on 7 December 2016.

On 14 June 2016, the Complainant opened a business bank account with the Respondent through its online facility. This account was opened for a sole trader but the Complainant needed a bank account for a limited company. The Complainant was told by the Respondent to visit his local branch and apply in person for a business account for a limited company.

On 7 December 2016 the Respondent refused to open a business bank account for the Complainant and as a result on 23 February 2017 the Complainant submitted a complaint to the Financial Services Pensions Ombudsman (“FSPO”) alleging that the Respondent had discriminated against him by not opening a business bank account for him in person despite being able to open a business bank account online with the Respondent. On 27 February 2017, the Complainant sent a letter of complaint to the Respondent explaining that he felt that the Respondent had treated him unfairly and discriminated against him by refusing to open a business bank account.

The Complainant also alleged that he was harassed and victimised for having an outstanding loan debt from 2009 with the Respondent which was used as grounds for refusing to open the business bank account in 2016. The Complainant asserted that this was evident from the Respondent’s decision to allow him open a graduate account in March of 2019 and stated that this conduct by the Respondent was unfair, unreasonable, oppressive, and discriminatory.

On 26 January 2021, the Complainant submitted a complaint to the Respondent using the ES.1 form. On 23 February 2021 and 1 March 2021, the Complainant had two telephone conversations with a FSPO Mediator regarding a complaint he made to the FSPO against the Respondent, which is identical to the instant complaint. He stated that in the telephone conversations the FSPO Mediator informed him that while the correct jurisdiction for cases of discrimination was the Workplace Relations Commission, there was also scope in the Financial Service and Pensions Ombudsman Act 2017 to hear complaints made to the FSPO on discriminatory grounds under Section 60. Having received this advice, the Complainant submitted a complaint to the WRC on 1 March 2021.

The Complainant stated that he has always been under the impression that the appropriate body to hear his complaint against the Respondent, who is a bank, is the FSPO but that the FSPO Mediator advised him that the FSPO had been given instructions to direct all such complaints alleging discrimination to the WRC. The Complainant asserted that such information is not public knowledge and he had never been aware of same until his conversations with the FSPO Mediator. The Complainant reiterated that there was scope in the Financial Service and Pensions Ombudsman Act 2017 to hear complaints made to the FSPO on discriminatory grounds under Section 60 and asked that the WRC Adjudication Officer direct that the FSPO has jurisdiction to hear this complaint.

The Respondent stated in the first instance that the WRC does not have jurisdiction to hear this complaint because it was submitted to the body on 1 March 2021, over four years after the alleged occurrence of the prohibited conduct which the Complainant stated happened on 7 December 2016. It was also highlighted that, although the Complainant alleged that he was discriminated against on the grounds of disability and family status, the Respondent was never put on notice at any stage of the Complainant's alleged disability or civil status.

Preliminary Point

I note firstly that this complaint relates to an alleged incident which took place on 7 December 2016 and that it was referred to the WRC by the Complainant on 1 March 2021, over four years after the alleged incident, which is well outside of the six month statutory time limit in accordance with Section 21(6)(a) of the Act which states: Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

The Complainant stated however that he did not become aware until 25 January 2021, when he was informed by the Financial Services and Pensions Ombudsman (FSPO), to whom he had originally submitted his complaint, that part of the complaint was outside of their jurisdiction and should be referred instead to the Workplace Relations Commission (WRC). He further claimed that he should have been informed much earlier by the FSPO where to refer his complaint and that he could not possibly have known prior to being informed that the Workplace Relations Commission (WRC) was the appropriate referral body. Accordingly, he asserted that this date of knowledge, namely the date on which the FSPO told him to refer his complaint to the WRC, should be deemed to be the date of occurrence of the prohibited conduct for the purposes of the Act.

Even if I accept that the date of knowledge as alleged by the Complainant should be considered the date of occurrence of the prohibited conduct, which for the avoidance of doubt I do not, I find that that this complaint is statute barred as the limitation period runs from the date the cause of action accrues rather than the date of knowledge. As the Respondent highlighted, this view was supported by the Labour Court case of HSE v Whelehan, EDA0923 (2009), the Complainant alleged that he was victimised and discriminated against under the disability ground contrary to ss.6(2) and 14A of the Employment Equality Act 1998. In that case, the Labour Court held that: “it is settled law that limitation periods run from the time of a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary. In that regard the Supreme Court, in Hegarty v O'Loughran [1990] 1 IR, 148 rejected the view that a cause of action accrues when the plaintiff could reasonably discover its existence. The Court held that a cause of action accrues at the time when all the requisite elements of the action existed whether or not the plaintiff knew of their existence”.

While the Complainant also requested that I find the FSPO has the jurisdiction to hear this complaint, this is outside of the powers conferred on me and I can only make a decision on whether  I have jurisdiction to hear a complaint that is referred to the WRC. Specifically, I find, in this particular instance, I find that I do not have jurisdiction to hear this complaint for the reasons set out above and cannot make any further finding in respect of this matter.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.