Complainant

Respondent

Parties

Janson  Kelebeng

The Governor And Company Of Bank Of Ireland

Representatives

Beibhinn Murphy BL instructed by O'Hanrahan Lally D'Alton

Barry Walsh Fieldfisher LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058400-001

21/08/2023

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

CA-00058463-001

23/08/2023

The Complainant stated that he visited the Respondent’s premises on O’Connell Street on 29 June 2023 seeking to open an account with a debit card. He asserted that an employee of the Respondent made racist and discriminatory remarks to him and that he was also denied service.

The Complainant stated in his evidence that he visited the bank on 29 June 2023 seeking to open an account with a debit card. He stated that the Welcome Advisor was very rude to him and constantly interrupted him when he spoke. He further asserted that she admonished him for speaking loudly when he informed her that this was how he spoke because he was African. He stated that she then replied that was why the Respondent didn’t serve black people and advised him that he should go because she would not be serving him. He stated that he sought assistance from the Respondent’s security guard but was ordered from the building by him even though he highlighted to him that he had been subjected to racist behaviour.

All three of the Respondent’s witnesses denied that the Complainant was refused service or that he was discriminated against on race grounds.

The Respondent’s Welcome Advisor, who interacted with the Complainant on 29 June 2023 around his request for a debit card, stated in evidence that he refused to listen to her when she informed him that he would be unable to use a debit card on his existing savings account. She also stated that when she explained to him why he could not do so, he persistently talked over and continually interrupted her. She categorically denied either making any reference to the Complainant’s race at any time during her interaction with him or refusing him service.

The Welcome Advisor’s colleague who was sat close to the Welcome Advisor on 29 June 2023 and stated that she heard the interaction with the Complainant supported her colleague’s evidence. She  denied hearing the Welcome Advisor refer to the Complainant’s race at any time during her interactions with him or that she heard her refusing to provide service to him. On the other hand, she stated that the Complainant was very rude to both the Welcome Advisor and the security guard.

The Respondent’s security guard stated that he noticed the Complainant being aggressive to the Welcome Advisor. He further asserted that when he went to calm the situation the Complainant informed him that he was an old man and should not be working there. He denied hearing the Welcome Advisor making any reference to Complainant’s race at any time during her interactions with him or that he heard her refusing to service him. He also stated that the Complainant was very rude both to him and to the Welcome Advisor.

Section 3 of the Equal Status Act states:

Discrimination (general).

3.— (1) 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—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

Section 3 (2) further states:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: (h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)

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 11 provides:

“—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

(b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

(5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Regarding the burden of proof in respect of such claims, Section 38A(1) provides that,

"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."

In the matter of Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court, in considering a similar burden of proof under the Employment Equality Acts held that,

“…mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Findings:

In the context of this complaint, the Complainant stated in his evidence that when the Welcome Advisor admonished him for speaking loudly in their interaction on 29 June 2023, he informed her that this was how he spoke because he was African. He asserted that she then replied that was why the Respondent didn’t serve black people and advised him that he should go because she would not be serving him.

On the other hand, the Welcome Advisor categorically denied that she made any comments in relation to the Complainant’s race and also stated that she did not refuse to serve him. I further noted that the Welcome Advisor’s clear and consistent evidence was fully supported by that of her two colleagues who both also stated how rude the Complainant was to her.

Having carefully considered the matter, I find that the combined evidence of the Respondent’s witnesses was more credible than that of the Complainant. I am therefore of the view that he has failed to establish a prima facie case of discrimination.

CA-00058400-001: As the Complainant failed to establish a prima facie case of discrimination, I find that the Respondent did not engage in prohibited conduct.

CA-00058463-001: This is a duplicate complaint.