Complainant

Respondent

Parties

Jolanta  Burzynska

The Governor and Company of the Bank of Ireland – amended on consent

Representatives

  Self-represented

Barry Walsh, Fieldfisher LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00054617-001

23/01/2023

The Complainant referred her claim to the Director General of the WRC on 23 January 2023 alleging that she was discriminated against on the grounds of civil status, sexual orientation, age, and race. The most recent date of discrimination was stated as 27 September 2022.

The Complainant stated that she notified the Respondent of her complaint on 4 October 2022 and received no reply.

The Respondent reject the claims.

In her WRC referral form the Complainant submitted as follows.

The Complainant alleged that she was declined a mortgage by the Respondent and was treated badly. The Complainant submitted that she was subjected to civil status discrimination, sexual orientation discrimination, race discrimination, and age discrimination.

The Complainant submitted that she informed the Respondent about her accusations in several letters but the allegations were rejected.

The Complainant submitted that the Senior Mortgage Specialist during the course of a conversation about partnership and divorce asked the Complainant’s partner, Mrs Conway directly if her ex-husband would have rights to the property that the Complainant was purchasing. Mrs Conway divorced her husband 20 years ago and found this question to be totally inappropriate and upsetting. The question had nothing to do with a loan that the Complainant was trying to acquire.

The Complainant submitted in the WRC form that any questions about Mrs Conway’s marriage and divorce in legal terms were irrelevant.

With regards to the alleged sexual orientation discrimination, the Complainant submitted that she was given to understand that formal partnership would affect her credibility. The Complainant and Mrs Conway decided to put this aside. However, it did not mean that financial support from the other party would not be there if needed.

The Complainant submits that there have been transactions between hers and Mrs Conway’s accounts (Mrs Conway is the Respondent’s customer for over 20 years) but this is quite normal where two people share their lives for 24 years.

The Complainant submits that they were informed that the Senior Mortgage Specialist had the impression that they are not telling the truth. The Complainant was not sure about what.

The Complainant said that she was told by the Senior Mortgage Specialist during their second visit at the branch that the fact of the partnership would have come to light, so they should not hide it. The Complainant submitted that there was no reason to question their trustworthiness. They are partners for the last 24 years and wish to formalise their relationship. They judged this information to be private.

The Complainant submitted that they have disclosed their partnership to back-up the Complainant’s income. However, it was a gesture of good will.

Regarding the alleged race discrimination, the Complainant submitted that she felt ethnically discriminated against as her English is not fluent, but she speaks fluent French.

Regarding the alleged age discrimination, the Complainant submits that that if she was solely granted the mortgage, sooner or later, the Complainant and Mrs Conway would organise the partnership to take place, simply to make a subject of inheritance easier in future for the surviving partner. It is obvious that their solicitor or themselves would inform the bank accordingly. Therefore, the argument that Mrs Conway being 70 years and 4 months old would be a burden is not valid.

The Complainant submitted that the Senior Mortgage Specialist told them that they would never get a mortgage in the branch.

Summary of direct evidence of the Complainant

At the adjudication hearing, under oath, the Complainant said that she applied for a mortgage herself as a sole applicant. While the Complainant and Mrs Conway had joint finances, she was conscious that she was the only one that could apply because of her age. The Complainant said that she and Mrs Conway were always present together at all meetings.

The Complainant said that they were introduced to the Bank Manager by Mr M, who acted as a broker.

The Complainant said that she met the Bank Manager for the first time on 3 August 2022. They spoke briefly about their financial situation. They told the Bank Manager that they were sisters. The Complainant said that the Bank Manager was very helpful and undertook to speak with the Senior Mortgage Specialist when she was back from leave.

The Complainant asserted that she brought all mortgage documentation home and all communication thereafter was through Mr M. She said that Mr M told her that she did not meet the criteria and suggested that they would be better off disclosing both their incomes.

The Complainant alleged that Mr M told her that the Senior Mortgage Specialist said that the Complainant and Mrs Conway were not telling the truth.

The Complainant said that she wrote the letter of 19 September 2022 to explain that they were partners.

The Complainant said that they met again with the Bank Manager and the Senior Mortgage Specialist, although she was not sure on what date, it was after 19 September 2022. She said that it was “a question of feeling”. She felt that the Senior Mortgage Specialist was not looking favourably at them at the meeting. She asked, in the Complainant’s view, strange, inappropriate and discriminatory questions on marital status grounds about Mrs Conway’s ex-husband.  The Complainant felt like a “second category citizen” because she was Mrs Conway’s partner. She believed she suffered discrimination due to her sexual orientation.

The Complainant said that she asked for the exact reason why her application was rejected. The Bank Manager explained that her repayment ability did not meet the criteria.

The Complainant said that after the meeting the Respondent considered their request to take both of their incomes into account. On 27 September 2022, Mrs Conway missed a call from the Respondent. The Complainant sent an email advising that Mrs Conway was not available to take the call. The Complainant said that she was not present at the time of the telephone conversation but Mrs Conway was told that the join application was not successful. She corrected herself and said that it was, in fact, an inquiry, not an application.

The Complainant said that on 2 October 2022 they sent the ES1 form to the Respondent. She then emailed on 11 October 2022 inquiring about the mortgage application number.

Regarding the allegation of discrimination, the Complainant stated as follows.

Allegation of discrimination on the grounds of civil status – the Complainant said that she was single. She felt that it would be easier to apply for a mortgage if she was married. She never knew why taking Mrs Conway’s income into consideration would not work.

Allegation of discrimination on the grounds of sexual orientation – the Complainant said that she felt that the Senior Mortgage Specialist did not look at them favourably because they were gay. Albeit the Complainant agreed that at the time her application was declined, the Respondent was not aware that they were gay.

Allegation of discrimination on the grounds of race – the Complainants said that her English is not fluent.

Allegation of discrimination on the grounds of age – at the time the Complainant was 64, approaching her 65th birthday. She would have 5 years to repay the mortgage. She submitted confirmation from her employer that she would be able to work until she is 70 years old. She felt that if she was younger, it would be easier to get a mortgage.

Summary of cross-examination of the Complainant

The Complainant agreed that Mr M was not an employee of the Respondent. It was put to the Complainant that the Respondent did not communicate through Mr M and dealt with her directly.

The Complainant confirmed that the meeting on 3 August 2022 was a “good” meeting. She confirmed that she informed the Respondent that she and Mrs Conway were cousins. She also agreed that subsequent interactions with the Senior Mortgage Specialist were good. She confirmed that she told the Senior Mortgage Specialist that she and Mrs Conway were sisters.

It was put to the Complainant that the Senior Mortgage Specialist went to great lengths to assist her. She said that she did review the application.

The Complainant denied that the Senior Mortgage Specialist notified her by phone that she was unsuccessful, that she did not meet the credit criteria and the Respondent had concerns about her repayment ability.  The Complainant said that Mr M told her that she “missed the target by a few repayments”. It was put to the Complainant that the Respondent did not communicate through Mr M.

The Complainant agreed that she was annoyed and angry with the underwriter. She said that she judged the decision as unfair.

The Complainant accepted that the meeting took place on 16 September 2022 and not, as she said in her direct evidence after 19 September 2022. It was put to the Complainant that the Respondent understood that at this meeting they asked the Respondent to look at a joint application. She denied and said that they wanted the Respondent to look at their joint income. It was put to the Complainant that it was communicated to them on 27 September 2022 that their joint application did not meet the mortgage calculations criteria and it was not forwarded to the underwriter.

The Complainant agreed that her letter of 19 September 2022 was a very complimentary one. It was put to the Complainant that her letter was consistent with the assistance the Respondent gave her. She agreed that the Respondent tried to help them but she said that it did not mean that she did not feel discriminated against.

It was put to the Complainant that her letter of 2 October 2022 to the Group Chief Risk Officer (ES1) was complimentary in the context of the treatment she received in the Respondent’s branch. The Complainant was also referred to her emails of 11 October and 12 October 2022. She agreed but said she was being “polite”.  

It was put to the Complainant that it was not an equality issue, that she was angry with the underwriter. She agreed but added that the rejection was one thing and how she felt during the meetings was another. She was asked to clarify how could she be so complimentary if now she says she feels so bad. The Complainant said that it is a psychological issue comparable with sexual harassment. At first the victim does not realise how they were treated and then they realise that they should not have been treated that way.

The Complainant agreed that it is in the Respondent’s interest to give her a mortgage and it is not in the Respondent’s interest to discriminate.

She confirmed that she never spoke to the underwriter.

The Complainant disagreed that it made sense for a financial institution to ask question about Mrs Conway’s ex-husband.

Regarding the Complainant’s assertion that someone in the Respondent’s bank told her that she would never get a mortgage, she clarified that it was said to Mrs Conway.

Events post the Complainant’s evidence and cross-examination

Following a short recess (1-1.10pm), Mrs Conway began her direct evidence.

Mrs Conway said that she got a phone call on 27 September 2022. She said that the Bank Manager told her that the application was declined and that they would never get mortgage in Ennis. She said that it was upsetting. She said that the first meeting was helpful and promising. She said that the Respondent should have given the Complainant the reasons for the refusal.

Mrs Conway launched into a tirade about what the Respondent should have done and confronting the Respondent’s witnesses directly. Mrs Conway’s behaviour escalated, as described above, which ultimately led to a recess in the proceedings. Mrs Conway did not return to complete her evidence and to afford the Respondent an opportunity to cross-examine on the evidence given.

INTRODUCTION

The Complainant is alleging discrimination by the Respondent on the grounds of (a) age, (b) race, (c) civil status and (d) sexual orientation under the Equal Status Act 2000 as amended ("the Act").

For the avoidance of doubt, there is only one complainant in these proceedings. While reference has been made extensively by the Complainant to a Mrs Wanda Conway ("Mrs Conway"), Mrs Conway is not a complainant in these proceedings.

The Respondent submits that the Complainant’s claim is insufficiently pleaded to such an extent that it rendered it difficult for the Respondent to understand the exact basis on which these claims are asserted.

This claim is fully contested and denied by the Respondent.

The Complainant and Mrs Conway have separately instituted proceedings before the Financial Services and Pensions Ombudsman ("FSPO") in relation to the same or similar background events. While the Respondent make no comment in these (WRC) proceedings about the FSPO proceedings, the Respondent does assert that the Complainant's more general dissatisfaction with her mortgage application refusal is the real reason for her issuing these WRC proceedings, rather than because any discrimination or harassment occurred.

SUBMISSIONS

It is alleged by the Complainant that the Respondent discriminated against her on the grounds of age, race, civil status and sexual orientation in relation to her applications for a mortgage pursuant to the Act.

The Respondent completely denies that it has discriminated against the Complainant pursuant to the Act or in any manner whatsoever.

Sequence of Events

It is the Respondent's submission that on 3 August 2022, the Complainant attended the Respondent's bank branch in Ennis. The Complainant asserts that she approached the Respondent to apply for a mortgage loan for €120,000.

The Complainant states in her letter dated 2 October 2022 that during this 3 August 2022 meeting at the branch, she met with the Bank Manager "who was very helpful and reassuring" and that she was "more than welcomed by [the Bank Manager] and [the Senior Mortgage Specialist] of BOI in Ennis and wish to thank them for their efforts". With respect, such feedback provided by the Complainant in respect of her interactions with the Bank Manager and the Senior Mortgage Specialist appears to be at complete odds with the allegations being made by the Complainant in these proceedings.

It is submitted that the Bank Manager, during this meeting on 3 August 2022, welcomed the Complainant, briefly discussed the documentation which she had provided and explained to the Complainant that her application would be passed on to and assessed by the Senior Mortgage Specialist in the branch upon that person's return from annual leave.

During the meeting on 3 August 2022, the Complainant and Mrs Conway informed the Bank Manager that they were cousins. It is submitted that the Complainant subsequently advised the Senior Mortgage Specialist that they were sisters.

The Bank Manager duly forwarded the matter to the Senior Mortgage Specialist to progress and the Senior Mortgage Specialist did so. The Senior Mortgage Specialist and the Complainant communicated and liaised with each other in relation to the mortgage application, prior to it being formally submitted to the Respondent's internal underwriter.

The Senior Mortgage Specialist went to great lengths to assist the Complainant in respect of her mortgage application in terms of compiling the various documentation and information required, to increase the chances of her application being successful and approved by the underwriter. The Bank Manager also reviewed the application prior to submission by the Senior Mortgage Specialist.

On 29 August 2022, the Complainant's mortgage application, in the Complainant's sole name, was presented by the Senior Mortgage Specialist to the Respondent's internal underwriter team via the Rome Online Mortgage Platform.

Therefore, the Complainant's application for a mortgage proceeded and was processed and she was in no way prevented from making such an application.

On 5 September 2022, the internal underwriter team formally communicated to the Senior Mortgage Specialist that the application was declined.

The Complainant was subsequently advised of this on either 5 September 2022 or on the subsequent days, through a phone call by the Senior Mortgage Specialist.

The reasons for refusal which were communicated to the Complainant were that, after an assessment of the Complainant's paperwork and circumstances by the underwriter, the Complainant's application did not meet the Respondent's credit criteria and that the Respondent was concerned about the Complainant's ability to repay the loan.

For the avoidance of doubt, there is no protocol within the Respondent to formally write to unsuccessful applicants in relation to the outcome of their mortgage application. Generally, applicants are informed about the outcome of their application over the telephone / verbally by the person at the Respondent with whom they had been dealing with. In any event, this is what took place in respect of the Complainant's application.

The Respondent accepts that it rejected the Complainant's loan application but denies that such rejection was in any way discriminatory.

In the letter dated 2 October 2022 2, the Complainant states that "however, we cannot say the same about the Senior Underwriter in Dublin… [he] should have had the decency explaining in writing his doubts and he is a prime example of prove that some Dublin sharks on 168k and not merely 68k are detached from reality". We submit that this statement represents a more general annoyance on the Complainant's part rather than an indication that discrimination occurred. This statement by the Complainant is addressed by the Respondent below.

It is submitted that a few days after the Senior Mortgage Specialist communicated with the Complainant in respect of the refusal, the Complainant requested a meeting with the Senior Mortgage Specialist and the Bank Manager, which was facilitated. The parties duly met in person on 16 September 2022.

At the outset of this meeting, the Complainant and Mrs Conway informed the Senior Mortgage Specialist and the Bank Manager that they were not sisters or cousins but were life partners. This was noted and the Senior Mortgage Specialist and the Bank Manager, again, during this meeting and subsequently, went to great lengths to assist the Complainant and Mrs Conway. At that point, the parties discussed and considered whether the Complainant and Mrs Conway might be eligible for a joint mortgage application as life partners.

It is submitted by the Respondent that this meeting on 16 September 2022 was very amicable, friendly and the Complainant and Mrs Conway provided the required information requested by the Senior Mortgage Specialist in respect of submitting a potential further (joint) mortgage application.

The Respondent refers to an email dated 19 September 2022 received by the Senior Mortgage Specialist from the Complainant and Mrs Conway. This letter thanked the Senior Mortgage Specialist and the Bank Manager for facilitating the meeting on 16 September 2022. In this email, it is clear that the Complainant and Mrs Conway were thankful to the Senior Mortgage Specialist and the Bank Manager for their "time, effort and commitment" to securing a mortgage for them. It also stated that "you both at BOI in Ennis are doing your very best for the mortgage to be granted to us…."

On 27 September 2022, the Bank Manager received an email from the Complainant, acknowledging that Mrs Conway missed a call from the Respondent, and advising that Mrs Conway now had her phone with her to take the call.

The WRC claim form states that the most recent date of discrimination was 27 September 2022.

It is submitted that the Senior Mortgage Specialist, in the presence of the Bank Manager, subsequently spoke with Mrs Conway (who is not a complainant) through a telephone call that same day and informed her that, unfortunately, the joint mortgage application did not meet credit policy / did not meet the mortgage calculator assessment criteria.

After this, the Complainant sent further correspondence to the Senior Mortgage Specialist on 11 October 2022, in which she requested the Senior Mortgage Specialist to send her the Mortgage Application number and she also stated: "Just to follow up on the decline of my mortgage would you be kind enough to give me the number of my mortgage application. We hope that you and [Bank Manager] are well. Wishing you all the best, Jola and Wanda."

The Senior Mortgage Specialist furnished the application number to the Complainant by email of 12 October 2022 and added: "Hi Jola, I am very well thank you and hope all good with you too. No problem at all the application number in which you are looking for is xxxxxxxx… " . The Complainant responded to the Senior Mortgage Specialist by email dated 12 October 2022 stating "I'm delighted that you are keeping well. Wanda is sending her best. Enjoy the evening."

What is clear is that these interactions with the Bank Manager and the Senior Mortgage Specialist were very positive and that the Complainant was appreciative of the efforts made. Whatever issues the Complainant might have with the Respondent, the Respondent asserts that they could not relate to the Bank Manager or the Senior Mortgage Specialist.

It is submitted that the polite and friendly correspondence exchanged by the Complainant with the Senior Mortgage Specialist, which was exchanged after their dealings had been concluded, appears to be at odds with the allegations now being made by the Complainant in these proceedings.  The dates of many of these engagements are after the "most recent date of discrimination" date as identified by the Complainant in her WRC claim form.

Allegations

The Complainant alleges that, during their discussion in relation to a potential joint application process, the Senior Mortgage Specialist asked Mrs Conway (who is not a complainant in these proceedings) whether her ex-husband would have rights to the property. The Complainant states that this allegedly constitutes discrimination on the civil status ground. The Complainant further submits that her partner (who is not a complainant in these proceedings) was "stressed" having to answer such questions and that "every single question" from the Senior Mortgage Specialist about her partner's marriage and divorce was "in legal terms is purely irrelevant”.

In response to this, the Respondent asserts that a question regarding marital status is a standard question which is put to every mortgage borrower as part of the application process and, furthermore, is an objectively relevant question. This question was asked by the Senior Mortgage Specialist in the context of a potential joint mortgage application being submitted by the Complainant and Mrs Conway and this is why this question, or similar questions, was and were of direct relevance. The Respondent regrets that the Complainant was offended by the question posed by the Senior Mortgage Specialist but refutes the allegation that this line of questioning was in any way discriminatory.

It is further submitted that the Respondent, in respect of mortgage applications, also has discretion to ask various questions in relation to applicants' spending, earnings, monies moving from and into the applicant's account, and so on.

The Complainant asserts that she feels discriminated against on the grounds of race as her English is not fluent and she feels that this has in some way impacted the success of her mortgage application. The Respondent entirely refutes this allegation or the assertion that it discriminated against the Complainant in the provision of her application due to her race/nationality. The Respondent considers this allegation to be baseless in circumstances where no evidence or detail of any kind has been provided by the Complainant about this allegation other than that she feels she is not fluent. It is submitted that the Respondent has granted numerous mortgages to customers of the Respondent from many different backgrounds and countries, many of which might not be fluent in English.

The Complainant asserts that she feels discriminated against on the grounds of age in respect of the provision of services and the mortgage application process. This is, again, entirely denied by the Respondent and this allegation is, again, unsubstantiated.

While the Complainant refers to discrimination on the grounds of sexual orientation in her claim form, she does not actually advance any information or purported evidence in respect of this unsubstantiated allegation. In any event, any such allegation is vehemently denied.

The Complainant further alleges that the Bank Manager and the Senior Mortgage Specialist informed the Complainant/Mrs Conway that they "will never get a mortgage in Ennis". This is completely denied by the Respondent.

The Complainant further alleges that they "were informed" by their third-party broker ("Mr M") that the Senior Mortgage Specialist had the impression that the Complainant and Mrs Conway were not telling the truth about their partnership. The Respondent denies this allegation in its entirety. For the avoidance of doubt, Mr M is not employed by the Respondent and the Respondent has no responsibility regarding any allegations made in relation to Mr M.

The Respondent also refutes that it breached any sort of data protection laws. In any event, data protection laws are not a matter for adjudication by the WRC.

The Respondent submits that the Bank Manager and the Senior Mortgage Specialist both are very senior staff members, with over 20 years' service with the Respondent and they have always acted kindly and professionally with customers and always do their best to assist customers. Their dealings with the Complainant were no exception - and indeed has been acknowledged by the Complainant as indicated earlier.

 It is submitted that the Bank Manager and the Senior Mortgage Specialist assisted the Complainant in every way possible in relation to her mortgage application(s).

The Respondent respectfully submits that the foregoing claims of discrimination are without merit.

Reasons for the Refusal of the Complainant's Mortgage

The Respondent's asserts that all applications for credit are assessed on their own merits according to a strict set of credit criteria. The Respondent refers to its letter to the Complainant dated 8 November 2022 wherein the Respondent outlined that it applies a variety of techniques and principles in the assessment of credit and any of these criteria or a combination thereof can give rise to a decline of an application.

The Respondent also refers to its letter to the Complainant dated 13 December 2022. The Respondent is subject to the Central Bank Consumer Protection Code of 2012 ("the Code"), which requires the Respondent to conduct an affordability assessment which involves, for example, a consideration of income, savings, age, health and the employment status of an applicant, along with their dependents, knowledge of financial products, and known future changes in circumstance.

Any product provided to a consumer by the Respondent should be “suitable” or “appropriate” to the financial needs and circumstances of that consumer.

Under the Code, the Respondent has a duty not to expose a credit applicant to lending which they cannot afford, and which may not be appropriate to their life circumstances.

The Respondent is entitled to consider whether an applicant will or will not be able to meet repayments by reference to various factors.

The Respondent submits that the Respondent is legally obliged to follow and apply certain criteria and polices in respect of assessing mortgage applications and that the Respondent is strictly and rigorously regulated by the Central Bank of Ireland in this regard.

In respect of the Complainant's application in her sole name, it is submitted that the decline occurred following consideration of the above referenced criteria where the focus was on the Complainant's ability to repay over the duration of the requested loan.

In respect of the Complainant's possible joint application with Mrs Conway, this did not proceed to formal application stage following local assessment by the Bank Manager and the Senior Mortgage Specialist.

The Respondent submits that it is not in a position to provide any further specific details and/or the mathematical rules relating to its lending and credit policy, given the commercial sensitivity of the analysis applied in processing mortgage applications.

The Respondent refers to the case of George McLoughlin v Permanent TSB, ADJ-00032663. In this case, the Complainant sought funding from the Respondent in the sum of €275,000 for the purchase of a house and claimed that the basis on which this funding was denied to him, was discriminatory on the grounds of age. The complainant submitted that the complainant’s savings and assets were “sufficient and proportionate” to the loan amount sought and there was no reasonable reason why the loan application should have been refused. In response, Permanent TSB submitted that the complainant's application was for a personal loan of €275,000 which was to fund the purchase of the house. It was submitted that the Bank’s agent had explained to the complainant that the purpose of a personal loan is not to finance the purchase of a house but rather for other purposes and the maximum amount being €75,000. In order to obtain the financing that the complainant was seeking, he would have to apply for either a mortgage or bridging loan. On that basis, the Complainant was agreeable to withdrawing the personal loan application. The Bank’s mortgage affordability criteria in respect of obtaining a loan were also explained to him. However, the Branch Lead told the complainant that, based on the complainant’s employment status, financial income and maturity period of the mortgage relative to his age, and based on his experience, he would not be successful in an application for a fixed term mortgage product. The complainant did not proceed to make any such application for a mortgage product. In their submission, Permanent TSB referred to the Central Bank’s Mortgage Credit Regulations which oblige creditors “to assess the creditworthiness of consumers before concluding a credit agreement” and states that such assessment “must be based on information which is necessary, sufficient and proportionate including the consumer’s income and expenses and other financial and economic circumstances”. The Adjudicator held that the complainant failed to prove the presence of a prima facie case of discrimination and the complaint failed.

It is also submitted that it is not the Respondent's policy to offer alternative mortgage sums within the context of a refusal of a mortgage. The Respondent's response in such a context relate to the actual submitted application only and it is not usual practice for the Respondent to propose other offerings in this regard.

The Respondent submits that applicants are always welcome to submit further mortgage applications for alternative sums, which would, again, be considered by the Respondent at that stage.

The Respondent submits that it welcomes the Complainant to re-apply for a further mortgage at which stage her circumstances and the financial product applied for will once again be assessed thoroughly and fairly by the Respondent, in line with its guidelines and lending policies.

It is not the WRC's function to form a substantive view on whether it would have granted a mortgage. Rather, the applicable consideration is whether discrimination occurred in relation to the Complainant, which the Respondent clearly says did not.

Burden of Proof

The burden of proof on proving a prima facie case of discrimination is firmly on the Complainant in these proceedings.

Section 38A(1) of the Equal Status Act 2000 (as amended), states 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.’

The onus in the first instance rests with the Complainant to establish the primary facts she alleges from which it could be inferred that discrimination has occurred. It is only if such facts are established and substantiated by evidence that the burden of proof then shifts to the Respondent to prove that discrimination did not occur. However, it is asserted by the Respondent that the discriminatory events simply did not occur.

The extent of the evidential burden in a case such as this was established by the Labour Court in 2001 in Southern Health Board v Dr Teresa Mitchell AEE/99/8 DEE 011. Here, the Labour Court found that a Complainant 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 was no infringement of the principle of equal treatment”.

The Respondent submits that such primary facts have not been established by the Complainant.

Furthermore, in Elephant Haulage Ltd v Garbacevs ADE/10/26 EDA1025 the Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” (from Melbury Developments Limited v Arturs Valpeters determination No. EDA0917). The Court observed that the language of Section 85A admitted no exceptions to the evidential rule laid down. The Respondent relies on this principle in defending this claim and asserts that the Complainant has not established facts based on credible evidence and that her claims have not been "elevated to a factual basis".

The above test was also described by the Court in HSE North Eastern Area v Sheridan EDA0820 in 2008 as involving a three-step process of analysis:

a. First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

b. Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

c. Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.

The Respondent respectfully submits that the Complainant has not got beyond the first step referred to above.

The Respondent also refers to Graham Anthony & Company Limited v Mary Margetts EDA. The requirement that an 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 in this case 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."

The Respondent asserts that no such facts have been adduced.

In Heleasha Mongan v Lidl Ireland ADJ-00043152, the Complainant asserted that, after she had paid for her goods in one of the Respondent's supermarkets, she was asked by an assistant manager for her receipt to ensure that her goods were paid for. The Complainant alleged that this action by the assistant manager amounted to discrimination on the grounds of her being a member of the Traveller community. The WRC Adjudicator held that at no stage was she accused of stealing or shoplifting. The Complainant also confirmed that there was no reference to her being a member of the Traveller Community. The WRC held that that the complainant has not established a prima facie case upon which discrimination can be inferred based on her membership of the Traveller community.

In the case of A Customer v A Hotel ADJ-00041010, the complainant alleged that the employees of the respondent harassed and discriminated against her on various grounds including gender during a series of telephone calls. In relation to the gender ground, the WRC Adjudicator held that whilst the respondent was aware that the complainant was a female, she had not discharged the onus of proving that the respondent’s alleged harassment occurred because she was female. The Adjudicator found that the complainant had not provided facts which supported the complaint and that the burden of proof was upon the complainant to discharge. On that basis, the complaints failed.

In the case of A Minor/Next friend v A Large Supermarket ADJ-00040155, the complainant alleged that the employee of the respondent discriminated him on the grounds of race, while he attended the respondent's supermarket. The complainant was a member of the Traveller community and alleged that the employee of the respondent, approached him and said, "We don't want your kind in this shop". The respondent submitted that there had been a prevalence of anti-social behaviour over 2-3 weeks at that time. The employee of the respondent described the complainant as “fooling around with a skateboard" and addressed the behaviour by asking that: "Please stop. If you are going to be like that, get out of the store". The employee of the respondent submitted that the complainant responded by giving the employee cheek, but she could not remember the content of that cheek. The employee of the respondent stated that she would have addressed the Pope in the same manner. It was irrelevant that the complainant was a Traveller. The Adjudicator accepted that the employee of the respondent was not aware of the complainant’s Traveller status. The Adjudicator found that the complainant had not attained the necessary burden of proof and held that the complainant was not discriminated on grounds of his Traveller status.

The Complainant has presented no evidence which demonstrates or proves the precise way she was treated any less favourably than any other applicant(s) or customer(s), in a comparable situation. The Respondent contends that the Complainant has unreasonably inferred from the rejection of her application that the Respondent has in some way discriminated against her. It is submitted that such unreasonable inferences do not give rise to a presumption of discrimination. The Complainant has not discharged the burden of proof in these proceedings.

Section 3 (Discrimination)

The Complainant's claim is that the Respondent discriminated against her on the grounds of age, race, civil status, and sexual orientation.

The Respondent refers to Section 3 of the Act which states that:

(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) …. (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,

Subsection (2):

As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(b) that they are of different civil status (the "civil status ground"),

(d) that they are of different sexual orientation (the "sexual orientation ground"),

(f) subject to subsection (3), that they are of different ages (the "age ground")

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

The Respondent submits that it did not, at any stage, treat the Complainant less favourably than any other customer (or another person) on the grounds of her age, race, civil status or sexual orientation.

All customers of the Respondent are treated in the exact same, respectful and non-discriminatory manner.

Summary of direct evidence of Mr Ian McMorrough – Director Area South

Mr McMorrough outlined his career with the Respondent.

Mr McMorrough said that there is a dedicated mortgage team in each branch of the Respondent bank. The teams go through series of questions to get to know a customer and to understand their ability to repay such as information regarding dependants, loans, security of employment, type of property they wish to purchase, etc. He said that factors that are considered include salary, security of employment, other debts, and dependants to establish how much would the customer have left after paying bills etc. The location and value of the property are also considered.

Mr McMorrough said that a decision regarding a mortgage application is made by the underwriter and not locally, there is no discretion locally to have an application approved or declined.  

Mr McMorrough referred to the Consumer Protection Code and said that all financial institutions are obliged to abide by the Code. He said that the financial institutions must gather and record information from the consumer to ensure that the product or service offered is appropriate to the customer. The Respondent must establish the length of the loan and the purpose for the funds.

Mr McMorrough said that the Respondent must evidence to the Central Bank if required that it gathered sufficient information from the customer.

Mr McMorrough said that sexual orientation of a consumer is totally irrelevant and it not a factor whatsoever. Equally, race is irrelevant. He said that the Respondent lends to customers of many nationalities. With regards to civil status, he said that it is only looked at in the context of any obligations that an applicant may have. He said that divorce is not final, an applicant may still have financial obligations to e.g. support their former partner/spouse.

With regards to age, Mr McMorrough said that it is only considered in the context of ensuring that there is an income that remains through the duration of the loan. He said that in this case it was confirmed by the Complainant’s employer and was not an issue. He said that the Respondent does not provide mortgages to consumers under the age of 18 years but would have given mortgages to consumers over the age of 70 years if their income allows.

Mr McMorrough said that he only became aware of the Complainant’s application when the WRC complaint was brough to his attention. He then reviewed the application.

Mr McMorrough said that if a consumer passes all criteria, the application is granted. Failure under one criteria does not mean that the application is necessarily refused.

In the Complainant’s case, the Respondent had a couple of concerns. Mr McMorrough said that there was floating in/out between accounts. It was unclear where the savings came from. When the savings were built up, then they were gone.  The so-called stress test which considers ability to repay in circumstances when there is a 2% increase in the interest rates was also not passed. He said that the Respondent also tries to protect the consumer while examining whether they can afford to repay a loan.

Mr McMorrough said that the Complainant wanted the Respondent to give her a more mathematical decision. The Respondent is not obliged to do so, it is a decision across a range of criteria.

With regards to the consideration of joint application, Mr McMorrough said that in some cases it is beneficial but, in this case, the additional income came with additional debt, so it would actually made the application worse.

Mr McMorrough said that it is in the Respondent’s interest to have a successful application, it is in business is to lend money. But the Respondent needs to consider the consumer’s financial circumstances. There was nothing in the application to suggest that the decision was on the basis on race, sexual orientation, age, etc. The numbers tell the story.

Cross-examination of Mr McMorrough

The Complainant asked Mr McMorrough if the reason to decline her application was her repayment capacity. She said that she still did not understand why. He replied that repayment capacity is the main factor. The stress test checks if the consumer would be able to repay the loan if there was a 2% increase in the interest rates. The amount of disposable income that was required was higher than that available to the Complainant. In the Complainant’s case when the funds increased in one account, they depleted in another. The Complainant did not meet the criteria.

Summary of direct evidence of the Bank Manager

The Bank Manager outlined his 24 years career with the Respondent.

He said that he arranged a meeting with the Complainant on 3 August 2022. The dedicated mortgage specialist was on leave at the time. As he did not want to leave the application waiting, he arranged a meeting. It was a friendly, cordial meeting, approximately 10-15 minutes in length. The Complainant and Mrs Conway described themselves as cousins. They had initial discussions and he followed up by emailing the relevant forms. The application was presented on 29 August 2022. It was put together by the Senior Mortgage Specialist and sent internally to the underwriter. The Senior Mortgage Specialist communicated the decision to the Complainant.

The Bank Manager said that he and the Senior Mortgage Specialist met with the Complainant and Mrs Conway on 16 September 2022 to see if there are any other options to improve the application. At that stage he was informed that the Complainant and Mrs Conway are partners and a review was carried out to assess if there was any potential for a joint application. He said that it was a short but definitely very friendly and cordial meeting.

The Bank Manager said that it was the Senior Mortgage Specialist who made the phone call to inform of the outcome of the application but he was with her in her office. He said that it is not true that the Complainant and Mrs Conway were told that they would never get a mortgage in his branch.

The Bank Manager said that the Complainant’s race, sexual orientation, level of English, etc. were of no relevance. There was absolutely no discrimination. They reviewed the application and did what they could. He said he was disappointed to be in the WRC.  He said that they tried their very best.

With regard to the broker, Mr M, the Bank Manager said that he did not have any engagement with him.

The Complainant chose not to cross-examine the witness.

Summary of direct evidence of the Senior Mortgage Specialist

The Senior Mortgage Specialist said that she had over 20 years of experience with the Respondent and her role is to put together information and an application as best as she can. She said that generally she meets face to face with an applicant to clarify any questions, put together paperwork and the application and then it is sent to the underwriter for an assessment.

The Specialist said that she was aware of the meeting that took place on 3 August 2022. When she came back from leave on 8 August 2022, she reviewed all the information and put the application together. She had no engagement with Mr M. She said that she discussed the matter only with the Complainant. She said that she made a phone call at some stage to clarify some issues with the application and then another call with the decision.

The Specialist said that the Complainant and Mrs Conway told her that they were sisters.

The Specialist said that the application was presented on 29 August 2022. She then received a notification from the underwriter that it was not successful. She mentioned that to the Bank Manager. She went back to her office and rang the customer. She said that it was not a nice phone to make and she understood that the Complainant would not be happy but she did all she could to support the application.

The Specialist said that her interaction with the Complainant were very friendly, amicable.

The Specialist said that when the third version of the Complainant’s and Ms Conway’s relationship came to light, it did not carry any relevance. It was their decision not to proceed with a joint application.

The Specialist confirmed that the Complainant’s letter was very complimentary, reflecting the positive experience and relationship.

With regard to the question about Mrs Conway’s ex-husband, the Specialist said that these are standard questions.

The Senior Mortgage Specialist denied that either she or the Bank Manager told the Complainant or Mrs Conway that they would never get a mortgage in Ennis.

With regards to the Complainant’s level of English, the Specialist said that she processes applications for customers who speak a variety of languages.

The Specialist said that there was no discrimination in any shape or form. She tried her best but did not get the result she wanted. She said that she would not do anything differently if she had to run this application again.

The Complainant chose not to cross-examine the Senior Mortgage Specialist. She only made a comment that they never spoke on the phone.

The Complainant alleges that she was directly discriminated against by the Respondent on the grounds of civil status, age, race and sexual orientation. The date of the first incident of discrimination was stated as 19 September 2022. The most recent date of discrimination was stated as 27 September 2022.

Discrimination is defined in Section 3 of the Equal Status Act 2000 as:-

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,

Section 3(2) of the 2000 Act provides in relevant parts:

“(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are: ....

(a)   [irrelevant]

(b)   that they are of different civil status (the “civil status ground”),

(c)    [irrelevant]

(d)    that they are of different sexual orientation (the “sexual orientation ground”)

(e)    [irrelevant]

(f)     subject to subsection (3), that they are of different ages (the “age ground”),

(g)   [irrelevant]

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

Section 5 of the Equal Status Act 2000 prohibits discrimination in the disposal of goods or services:

“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.”

There was no dispute that the Respondent provides a service within the definition of section 2(1) of the Act.

Section 38A of the Acts sets out the burden of proof which applies to a claim of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. It is only where such a prima facie case of discrimination has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In Hallinan v Moy Valley Resources DEC-S2008-25, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:

1.      The complainant must establish that he or she is covered by the relevant protected ground;

2.      That the incident(s) complained of actually occurred;

3.      The treatment constitutes less favourable treatment within the meaning of the Act (than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient in itself to establish a claim of discrimination that the Complainant falls within one of the discriminatory grounds laid down under the Act. Other facts must be adduced from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

In the case of Olumide Smith v The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

Comparator

A complainant must show that she has been treated less favourably than another person is, has been or would be treated in a comparable situation on the relevant grounds. In this case, the Complainant did not offer a comparator.

In making my decision, I have considered all of the submissions and evidence, written and oral, made to me by the parties to the case.

Alleged discrimination on the civil status grounds

The Complainant alleged that it would have been easier to apply for a mortgage if she was married. The Complainant did not elaborate as to why she believed that she, as an unmarried person, was treated less favourably than a married person. 

The Respondent denied that allegation and contended that the Complainant’s application failed as she did not meet repayments requirements.

Alleged discrimination on the grounds of sexual orientation

The Complainant alleged that she was discriminated against on the grounds of her sexual orientation when the Respondent declined her application for a mortgage. She alleged that her application was declined because she was gay and in a relationship with Mrs Conway.

The Complainant did not put forward any evidence as to why she believed she was treated less favourably than another person of different sexual orientation was or would be.

Furthermore, it was not disputed that the Complainant and Mrs Conway in their dealings with the Respondent initially described their relationship as “cousins” and “sisters”. It was not disputed that the Complainant’s application was presented to the underwriter on 29 August 2022 and, it was subsequently declined on 5 September 2022. Furthermore, it was not in dispute that the Complainant and Mrs Conway met with the Bank Manager and the Senior Mortgage Specialist on 16 September 2022 and at this meeting they disclosed that they were, in fact, life partners.

It is, therefore, clear that at the time when the Complainant’s application was declined, the Respondent was not aware of the Complainant being in a relationship with Mrs Conway.

The Respondent denied the allegation and contended that the Complainant’s application failed as she did not meet the repayments requirements.

Alleged discrimination on the grounds of race

The Complainant alleged that she was discriminated against by the Respondent on the grounds of race as her English was not fluent. There was nothing put forward to support this assertion.

The Respondent’s position was that it provides service to customers of a variety of nationalities and varied fluency of the English language. The Respondent denied the allegation and contended that the Complainant’s application failed as she did not meet repayments requirements.

Alleged discrimination on the grounds of age

The Complainant alleged that it would be easier to obtain a mortgage if she was younger.

There was no evidence put before me to show that the Complainant was treated less favourably than someone else was or would have been in a comparable situation.

The Respondent asserted that the Complainant’s disposable income did not meet the threshold required for the amount and type of the product the Complainant applied for. The Complainant provided a letter from her employer that she would be able to remain in employment until the age of 70. However, Mr McMorrough gave evidence to the effect that the disposable income available to the Complainant was not sufficient to meet the repayment requirements and to meet the so-called “stress test”. The Respondent contended that the rejection of the Complainant’s application was based on the Complainant’s incapacity to repay which involved applying a criteria matrix that included a consideration of age, but was not confined to that. The Respondent forecasted that given the Complainant’s income (which by her own evidence was €68,000 per annum), the amount of the loan of €120,000 and the Complainant’s intention to remain in employment until she reaches the age of 70 as confirmed by her employer (some five years), the Complainant would not be able to meet the repayments.

Having considered carefully the written submissions and the oral evidence I am satisfied that the Respondent is required by law to assess suitability and affordability of loans to prospective customers who have the status of consumer.  The Consumer Protection Code 2012 as section 5.17 states:

“A regulated entity must ensure that any product or service offered to a consume is suitable to that consumer, having regard to the facts disclosed by the consumer and other relevant facts about that consumer of which the regulated entity is aware …” 

I accept that based on the evidence provided at the adjudication hearing that the Respondent’s decision to deny the Complainant a loan was on the balance of probabilities as a result of an inability to repay that loan.

The obligation rests with the Complainant to provide credible evidence to raise the allegations to meet the standard of established facts. As set out in Melbury Developments Ltd. v Valpeters EDA0917 (albeit under the Employment Equality Acts)  “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” 

The inference of discrimination must have a factual / credible basis and cannot be based on mere speculations or assertions which are unsupported by evidence.

In the instant case, the Complainant made a number of allegations relating to the decision of the Respondent to decline her mortgage application. However, I am not satisfied that I have been presented with evidence from which I could reasonably conclude that the Complainant was discriminated against by the Respondent on the ground of civil status, and/ or sexual orientation and/or age, and /or race. The Complainant’s claims amount to mere speculation and assertions and this is not sufficient to infer discrimination.

On the balance of probabilities, I am satisfied that the reason for the Complainant’s mortgage application being unsuccessful was not directly attributable to the Complainant’s civil status, sexual orientation, age and/or race.

Based on the merits of the within case and having regard to the evidence adduced, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of civil status and/or sexual orientation, and/or age, and/or race.

I declare this complaint to be not well founded.

Age- sexual orientation – race- civil status discrimination-