ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00013897
A Syrian Refugee
Cathal McGreal BL instructed by Stephen Collins, Irish Human Rights and Equality Commission
In- house Solicitor.
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 09/11/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Claimant is Syrian by origin but granted refugee status in July 2017 in Ireland. He came to Ireland as part of Ireland’s Refugee Protection Programme. The Department of Justice subsequently issued him a refugee travel document in accordance with Article 28 of the 1951 Geneva Convention Relating to Status of Refugees. The Complainant is a qualified dentist. He is currently in the process of requalifying here.
On the morning of Thursday 16th November 2017, the Complainant went to a branch of the Respondent, his objective was to open a bank account.
This complaint was received by the Workplace Relations Commission on 6th April 2018.
Summary of Complainant’s Case:
The Claimant is Syrian by origin but granted refugee status in July 2017 in Ireland. He came to Ireland as part of Ireland’s Refugee Protection Programme. The Department of Justice subsequently issued him a refugee travel document in accordance with Article 28 of the 1951 Geneva Convention Relating to Status of Refugees. The Complainant is a qualified dentist. He is currently in the process of requalifying here.
In the manner outlined in the Form ES.1 (repeated below) the Complainant was denied a service by the Respondent on the basis of the race ground in s.3(2)(h) of the Equal Status Acts 2000 to 2015 (“the Acts”). Whilst this fact appears to be unanswerable (indeed it seems uncontested on the facts) it is not the case that the Respondent is proceeding on the basis that is has breached the Acts. This is therefore a contested hearing and the Respondent cannot, in the circumstances outlined below, be taken to have acknowledged the gravity of what occurred or to have fully understood the impact of what occurred from the perspective of the Complainant.
The Irish Human Rights and Equality Commission (hereinafter “the Commission”) acts on behalf of the Complainant. It is an independent statutory body, established under the Irish Human Rights and Equality Commission Act 2014 (hereinafter the IHRECAct 2014) Section 10 (1) (a) of the IHREC Act 2014 provides that a primary function of the Commission shall be to “to protect and promote human rights and equality”.
The Adjudication Officer will have received the booklet and submission of the Respondent. The Complainant is willing, to avoid duplication, to adopt the use of the booklet of the Respondent with some minor additions.
The only factual aspect of the incident itself on which the parties appear to differ is that the Complainant recalls (and CCTV shows) that the agent of the Respondent who spoke to him consulted with a colleague before plainly communicating to him that he could not open an account simply because he was Syrian. The Respondent prefers a version of events where a “mistake” was made by a single employee who it claims was fully trained and properly prepared by the Respondent to deal more appropriately with Complainant’s application to open an account.
The parties do differ, however, fundamentally on the manner in which an incident such as this should have been prepared for, prevented from happening and as to the manner in which an incident such as this should have been the subject of remedial action.
It is a fact of great significance to this case that what occurred was an incident arising from of the application of a positive policy of explicit refusal of a service based on nationality. Whichever way one looks at reasons why the incident in this case occurred, it is based in essence on identification of a national profile of a prospective customer.
Therefore, whatever regret was expressed by one of the two agents of the Respondent on the date of the incident because of the “war in Syria” (a cold comfort at best) there was no apology at the time or explanation of the policy she believed she (and her colleague with whom she consulted) was following. This is a case not about a mistake by two bank officials. It is a case about how their mistake was allowed to happen. It is a case about how their mistake was highly likely to occur (it was foreseeable) without very careful steps being taken to ensure that it did not. It is ultimately a case about whether Syrian Refugees (and being Syrian in Ireland is commonly synonymous with being a Syrian Refugee) were and are the subject of the same service by the Respondent as those of different nationality or different nationality-defining characteristics.
Where any service provider of any size or sophistication, let alone a leading financial service provider such as the Respondent, is apprehended to have applied an explicit policy of direct discrimination based on nationality, there must be an extensive duty, unique perhaps to cases of explicit direct discrimination, resting on that respondent to ensure that such policies are precisely and carefully applied so as to avoid what occurred in this case. A great deal of care should have been taken where a service provider is applying a rule which is based on nationality or nationality-defining characteristics.
The Complainant’s case is a simple one with two limbs. (1) given the explicit nature of the discrimination that occurred and the profile of the Respondent, this incident should not have occurred. (2) despite its attempts to be seen to be apologetic and the excuses it has made since the incident, the Respondent has been the opposite of transparent as to what happened and gives no real assurance that the training and policies in place at the time was appropriate or that the training and policies in place now are sufficient. Even the obvious issue of ensuring that travel documents would be sufficient for refugees was absent from the Respondent’s website and application materials both before and after this incident.
It is submitted that it is an aggravation of the discrimination that occurred in this case for the Respondent to claim by way of mitigation that it offered a sum in compensation of €250.00 (and to describe it as an offer of “goodwill”) and to offer him a service that he had already been obliged to secure elsewhere because of its conduct. In what can only be described as an empty exercise in PR we are told in the submissions that the Respondent is still willing to open a bank account for the Complainant. That is no more than treatment he was always entitled to and utterly beside the point.
It is submitted that an aggravation of the discrimination that occurred in this case for the Respondent to submit that “it does not discriminate against any individual on grounds of race, ethnicity or at all”. That is a very broad statement and an ambitious claim to make in the context of these proceedings. It is a statement that calls for proof and should prompt this tribunal to exercise its jurisdiction to call for relevant documents to support it in the form of the training and policies in place at the time and those that are in place at present.
It is also an aggravation of the discrimination for the Respondent to rely on s.14. In order to rely on s.14 the Respondent would have had to have had a precise and specific requirement to act in a certain manner compelled by a relevant legal instrument whereas here there is no evidence that the Complainant presented any basis (other than a basis that was unlawful and discriminatory) to suggest the application of any such instrument was necessary.
“Nothing in this Act shall be construed as prohibiting-
(a) the taking of any action that is required by or under
(b) preferential treatment or the taking of positive measures which are bona fide intended to-
· (i) promote equality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons, or
· (ii) cater for the special needs of persons, or a category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs.
This provision contains no exemption or defence to persons who believe they are acting lawfully. S.14 must be strictly construed. Furthermore, even if the Respondent’s discriminatory measure was required by law, the Racial Equality Directive does not envisage any blanket exemption for discriminatory measures required by law.
Section 14 of the Acts applies specifically to discriminatory treatment required by law. In Sabherwal v ICTS (UK) Ltd DEC S2008-037, the Equality Officer considered their application of US security protocols applied at Shannon Airport. The Complainant in that case claimed he had been singled out because he was Asian. The US protocols were raised by the Respondent as a measure the subject of an exception under S.14. The Tribunal ruled as follows:
“While section 14 (1) of the Acts may follow for certain measures and activities under national legislation, European legislation and/or legally binding international measures on Ireland, it certainly does not mean that those measures and/or activities should be provided in a less favourable manner on the grounds of race or any of the other equality grounds unless the legislations and/or conventions specifically require them to do so”.
With regards to the Respondent’s submissions in relation to compensation and mitigation, Article 15 of the Racial Equality Directive – applicable to the provision of services provides:
Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 19th July 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.
The compensation in the present case must therefore be “effective, proportionate and dissuasive” to comply with and give effect to the Racial Equality Directive.
It is a further aggravation of the discrimination that occurred in this case for the Respondent to quote procedures that refer to people who are resident in certain countries and to the Complainant’s country of origin as “extremely high risk”. He does not have to be reminded of the difficulties occurring in his home country to which he cannot return however much he wants to. But this is not simply inappropriate. It is actually entirely irrelevant to the Complainant’s simple application to open a bank account that the Respondent has policies relating to people resident in extremely high-risk countries. This is because the Complainant is not a resident in such a country.
Ultimately, the difficulty with the Respondent’s approach to this claim is that it essentially that it is satisfied after its analysis of its own conduct that its policies and training were sufficient to prevent this incident occurring and are sufficient to prevent its recurrence. With respect, this is not an appropriate response. Those policies and that training did not prevent its occurrence and there is no material assurance that they will prevent its recurrence.
For the avoidance of doubt, the Complainant does rely on the “Iranian case” but does so on the basis that the discrimination in the Complainant’s case herein is more invidious because justification does not arise. He is not a resident of Syria and somewhat poignantly is prevented from being a resident in his home country because of his Refugee Status. He had, very recently been granted that status and was opening an account for the payment of salary in exercise of one of the fundamental cornerstones of what Refugee Status means. He was the subject of conduct by the Respondent which goes far deeper than what is described as a genuine mistake where a presumption was allowed to be made between extremely high-risk customers and a man from Syria. They are not the same thing. No justification could possibly arise in the terms outlined in mitigation of the Iranian case. Neither is it understood how the length of time the customer is with the Respondent can be said to be better or worse to a person is refused the opportunity for any service whatsoever. Inconvenience (administrative or otherwise) is beside the point. This is a case about the indignity of what occurred.
Details of the incident
The details of what occurred on 16th November 2017 (the date of the incident) are set out in sufficient detail in the complaint form ESI exhibited in the Respondent’s booklet. On the morning of Thursday 16th November 2017 the Complainant went to a branch of the Respondent . There, he explained to a staff member that he wanted to open a bank account. The staff member told him that the Respondent only opened new accounts in the afternoon. She said that she could, however, check his documents to make sure they were in order.
The Complainant does not know the staff member’s name. He has requested it several times. The Respondent declined to provide it. The staff member, a woman, can be seen in images from the CCTV footage subsequently obtained by the Complainant under the Freedom of Information Act.
The Complainant presented the staff member with his 1051 Refugee Convention travel document. He knelt down to look in his bag for proof of address. The woman took his 1951 Refugee Convention travel document, went behind a counter and showed it to a second staff member of the Branch as can be seen from CCTV footage.
The Complainant explained what happened next in Form ES1:
“The woman quickly came back and said we don’t open bank accounts for Syrians at the moment and she pointed to the word “Syria” which is recorded on the Travel Document as my place of birth. I said “really” and she replied that she was sorry and she mentioned the situation of war that Syria is going through and, at the end, she said sorry about that and that I can try another Bank. I put my proof of address back in my bag and she gave me back my travel document”.
As can be seen from CCTV images, the member of the Bank staff conducted this discussion with the Complainant in the main area of the Branch while standing over him as he knelt to search through his bag. The second member of the Branch staff sat approximately five feet away. The Complainant took back his travel document and left the premises.
The Complainant sent the Respondent Form ES1 on 20th November 2017. He asked for information including all relevant CCTV footage from the Respondent; the Respondent’s anti-discrimination policy and any training materials relating to anti-discrimination training. He also asked for the name of the blond haired woman with whom he had dealt.
Mr A replied on behalf of the Respondent by letter dated 23rd November 2017
“I am sorry that you have had occasion to complain for the reasons as outlined in your letter of the 20th… As Regional Manager I would welcome the opportunity to meet with you to discuss the letter over the coming days when is convenient for you”.
The Respondent sent another letter the next day 24th November 2017
“I wish to acknowledge your letter received on 21st November 2017, copied to the CEO. Mr B has appointed Mr A, Regional Manager to review your case. I understand Mr A has written to you on 23rd November requesting to meeting with you to discuss the concerns raised in our letter”.
The Complainant replied by letter dated 24th November 2017
“I have read what you say in your letter. As I explained, the way that I was treated by the Bank is upsetting and humiliating. What would be most helpful to me at this time is for the Bank to respond to my earlier letter, and the ES.1 form and my request for CCTV. At that stage, I can consider whether a meeting would be useful”.
Mr A, Regional Manager replied with a lengthy letter dated 1st December 2017
“I sought a meeting to discuss your concerns in a letter dated 23rd November and a subsequent letter dated 28th November in which I outlined our willingness to engage in the process of facilitating an Account opening for you (…). Firstly, I’d like to reiterate my apologies for the poor customer experience which you had when you visited the Branch in XXX on 16th November (...). By way of explanation, in order to ensure adherence with international sanctions in place, the Bank does not enter into certain banking relationships (including account opening) with parties resident in certain countries (…). However, the restrictions on banking relationships (including account opening) do not apply as in your case, to individuals from those jurisdictions who have been granted refugee status in Ireland. In this instance, we should have undertaken our prospective customer due diligence process and reviewed appropriate customer documentation under the Criminal Justice Act requirement. Once we had established your refugee status in Ireland, we could then proceed to open an account for you”.
Mr A offered an incentive to the Complainant:
“I would like to offer you a credit to your new account of €250 as a gesture of goodwill”.
The Respondent refused to provide the training materials sought by the Complainant
“Our training materials and other documentation you have sought contains sensitive information relating to account opening process which we are unable to release”.
For the avoidance of doubt, this is not accepted. It is evasive. It is not accepted that the Adjudication Officer is concerned with any type of document from which such considerations could arise. Even if this were not the case, there is a variety of means available to the parties, and in particular to the Adjudication Officer, by which these procedures can be examined without any issue arising as to sensitive information.
Mr A then asked the Complainant to provide “us with a copy of a photo ID” to enable the Bank to comply with his request for “a copy of the CCTV coverage of (his) visit to the Branch”.
On 6th December 2017 the Complainant wrote to the Bank enclosing a copy of his refugee travel document:
“I would still like some more information and a comprehensive response to the other requests that I made in my letter 20.11.17 and the ES.1 form. Once I have that information I will consider whether a meeting would be useful. It is very important to me that robust systems are properly in place to ensure that no other Syrian, or indeed no other refugee, would have a similar negative experience in any XXX Branch.
Mr A wrote to the Complainant on 19th December 2017 enclosing a copy of the Bank’s ES2. Mr A refused to disclose the identity of the woman/women with whom the Complainant had dealt, and refused to provide the Complainant with a copy of the Bank’s anti-discrimination policy and/or training materials:
“The Bank cannot unilaterally disclose personal information on individual staff member (..) as Regional Manager, I take the full accountability on behalf of the Bank for your complaint and the actions of any staff members (…). All of the Bank’s internal policies are for internal use only and therefore I am not in a position to provide you with a copy (…). We are unable to provide you with access to any of our training materials related to account opening or the schedule of delivery of training materials as it contains sensitive information covering security aspects of the process”.
The Bank reiterated that it should have undertaken “due diligence” to establish the Complainant’s “refugee status in Ireland” suggesting that it still thought that his 1951 Geneva Convention travel document was insufficient proof of same.
In its Form ES2 the Bank described the anonymous staff member’s actions variously as “a mistake” and “error” and a “misinterpretation”. The Irish Human Rights and Equality Commission referred a complaint to the WRC on the Complainant’s behalf on 6th April 2018.
Notification and issuance of this claim are as set out in the Respondent’s submission and no issue is taken with these as they comply with the requirements of the Acts. The Complainant will rely on the consistent failure of the Respondent to address the initial request by way of Form ES.1 seeking the training and policy materials relevant to this claim (requests 4 and 5 of Part 6 of the Form ES.1). The Complainant will rely on s.26( a) of the Acts.
It is claimed that the Respondents, their servant and agent, treated the Complainant less favourably than another person would be treated on the basis of s.3(2)(h) (the race ground).
The foregoing constitutes a breach of s.3 of the Equal Status Acts 2000 to 2015 (hereinafter “the Acts”) which provides
(1) For the purpose 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) […] which-
(ii) existed but no longer exists
(iii) may exist in the future, or
(iv) is imputed to the person concerned …”
As a lawful resident of Ireland, the Complainant had a right to open a bank account with the Respondent subject to the Bank’s usual conditions. The Respondent refused to open a bank account for the Complainant on the grounds of his nationality. This less favourable treatment constitutes discrimination on the grounds of race contrary to the Equal Status Acts.
The Respondent did not refuse to open a bank account for the Complainant because he was a refugee. They refused to open one for him because he was from Syria. The staff member also refused to open a bank account for despite the fact that he presented her with evidence that he is a refugee.
At paragraph 3 of Introduction to the Outline Submission of the Respondent, the Respondent states:
“In this case, the Bank Official who met with the Complainant in the Bank erroneously believed that the Bank was not permitted to open an account for Syrian Nationals. This is incorrect. The Bank’s policies restrict officials from opening new accounts for Syrian Residents, as Syrian Residents are on the UN Sanctions List. The Bank permits accounts to be opened for individuals with refugee status, such as the Complainant”.
The Respondent is doing no more than is required of it by international law. Article 28(1) of the 1961 Geneva Convention on the Status of Refugees makes it clear that it is unlawful to visit sanctions on an individual refugee resident in a host state:
“With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality”.
At paragraphs 18 to 24, the Respondent contends that its staff member mistakenly applies its “Residents of Syria” policy to the Complainant. The staff member however was clearly on notice that the Complainant was not a resident of Syria when dealing with him. In the first place, the Complainant was in Ireland at the time, in circumstances where the difficulties in travelling into and out of Syria are well known due to ongoing conflict. In the second, the Complainant presented the staff member with a 1951 Refugee Travel document, which is a clear indication that the Complainant is a resident of Ireland, not Syria. Finally the staff member indicated to the Complainant that his nationality was the problem, not his residence.
In its Submission, the Respondent states;
“the Bank does not discriminate against refugees. The Bank accepts the Irish Refugee Travel Documents as an acceptable form of proof of identity for customers opening accounts and has opened numerous accounts for customers with refugee status in Ireland who used that documents”.
In the first instance, the Respondent did not discriminate against the Complainant because he is a refugee; it discriminated against him because he is from Syria. In the second, the Respondent offers no proof whatsoever to support its claim that it “has opened numerous accounts for customers with refugee status in Ireland”.
The Respondent continues
“While the Bank accepts and always accepted refugee travel documents as proof of identity, since becoming aware of this incident, the Bank has updated its website to specifically refer to the fact that travel documents are accepted. A print out of the relevant section of the Bank’s website is contained herein”.
The Respondent claims on the one hand that it has always accepted the 1951 Refugee Convention travel document, while on the other admitting that it did not list the Document as an acceptable form of ID until recently, when it updated its website.
While it is true that the Respondent’s website now lists “Current Valid Travel Document” as an acceptable form of ID, at the time of the incident it did not. As the attached printout dated 22nd June 2018 shows the Respondent did not list Travel Documents as an acceptable form of ID at the time that the Complainant called to the Respondent or for several months afterwards:
“Current valid signed passport
Current valid driving licence – must contain photograph (Irish Provisional accepted)
Current EU National Identity card”.
Furthermore as the attached printout also shows a search of the Respondent’s website on 22nd June 2018 returned no results in the following terms:
“Irish Travel Document; Refugee Travel Document; Travel Document; Refugee Syria; asylum seeker; anti-discrimination policy; equal status acts”.
The Respondent states that “it engages directly with the Departments of Justice and Equality in relation to individuals with refugee status in Ireland” without offering proof or details of same. The Respondent claims that the “Department has confirmed that the Bank is the only financial institution in Ireland that is working with the Department in relation to this important issue” without offering any proof or details.
The Bank states that:
“The Complainant did not raise a complaint directly with the Bank in the immediate aftermath of the incident, but rather submitted an ES1 Form”.
The Respondent appears to suggest that the Complainant acted improperly in not making a complaint to it in the first instance. He did not. The incident occurred on Thursday 16th November 2017. On 20th November 2017, the following Monday the Complainant sent the Respondent an ES1 Form. It was his legal right and entitlement to do so, and he acted promptly and swiftly in sending the Form ES1 within two working days of the incident “in the immediate aftermath of the incident”.
The Respondent then had one month within which to make a satisfactory response to the Complainant. While the Respondent did respond, and wrote several letters, the Complainant found the Respondent’s reply to be unsatisfactory in the following ways:
· Failed to “provide a comprehensive response to” requests made in the ES1 form.
The Respondent continues:
“On receipt of notice of the issue Mr A contacted the Complainant and apologised to him and offered him the opportunity to open a Bank Account. The Complainant decided not to engage with the Bank, and selected to proceed with a complaint to the WRC”.
In fact, the Complainant acted properly at all times. He sent the Respondent Form ES1 and gave them one month with which to reply. Rather than reply with Form ES2 in a prompt and fulsome manner, the Respondent attempted to arrange a meeting with the Complainant to discuss what it called his “poor customer experience”. The Complainant wrote two letters requesting that the Respondent respond to the concerns raised by him in his Form ES1 before they returned Form ES2.
The Respondent states that the “Bank official’s error was regrettable, but thankfully isolated, and the Respondent is not aware of any similar incidents arising in any other of its branches”. The Respondent offers no evidence whatsoever to support this claim. We reserve the right to cross examine the Respondent about this at hearing.
The Respondent suggests that
“The Complainant may attempt to draw a distinction between the present claim and the case ADJ-0008685 (…) Although the two cases involve financial institutions and individuals with a link to a country on the UN Sanctions List, the Iranian case does not have any bearing in this case”.
Firstly, it is the Respondent who may attempt to draw a distinction between the two cases, not the Complainant. Secondly, the Complainant’s experience of discrimination was worse than the Iranian case for the following reasons:
· The Complainant experienced direct discrimination on the grounds of race, not indirect, as was the case in the Iranian case. The Respondent explicitly refused to open an account for him on the grounds that he was from Syria.
The Complainant acknowledges the limitation placed on monetary jurisdiction by s.27(2) of the Acts in the awards that may be made in this claim. The Complainant seeks a twofold remedy consisting of compensation and course of action.
S.27(1) of the Act provides as follows:
“Subject to this section, the types of redress for which a decision of the F61 (Director of the Workplace Relations Commission) under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
a) an order for compensation for the effects of [the prohibited conduct concerned]
b) an order that a person or persons specified in the order take a course of action which is so specified.
From the exchange of correspondence it has become clear that the Respondent is not willing to take the following steps of its own violation and a “course of action” order will therefore be required where deemed necessary by this tribunal so that the order that is made in respect of the Respondent’s breach of the Acts, is sufficiently dissuasive and more importantly, effective.
a. that the Respondent specifically state that it accepts the Refugee Travel Documents (not simply a “travel document”) on the Respondent’s website as a suitable form of personal identification for opening accounts (currently the work “refugee” appears nowhere on the website).
b. that the Respondent’s staff will be given appropriate training on the Refugee Travel Document subject to annual review and/or a report on IHREC detailing its contents and changes from previous years.
c. that the Respondent update its “guidance on the Equal Status Acts (and other equality/diversity matters” to include:
1. clear guidelines, together with corrective action where mistakes are made and penalties for disregard or failure of adherence, on any step taken on foot of any policy or rule or regulation which directly or indirectly identifies any customer or potential customer on the basis of race, nationality or ethnicity;
2. a clear reference to the distinction between a person’s race, nationality or ethnicity and the possibility that they may be identified as, may come from or be connected with nations or countries deemed “extremely high risk” or any particular nation or country of interest.
d. that the Respondent be required to submit for the purpose of approval by either by the Adjudication Officer or IHREC all measures undertaken by way of training on equality and diversity provided to staff members and that such training be carried out on a sufficiently frequent basis and on a mandatory basis to include the training of newly recruited staff”.
e. that the Respondent’s code of conduct and its diversity and inclusion code appearing on their website be amended as underlined. “as an employee and customer (including potential employee or customer) I can expect to ….[b]e protected from any form of discrimination and never to be treated less favourably or disadvantaged in any way based on gender, gender reassignment, age, civil status, family status, marital status, sexual orientation, disability, race, religion, membership of the Traveller Community or membership of a trade union” (p.2 Diversity and Inclusion Code).
f. that any such steps as those outlined herein be undertaken on a nationwide basis and not, as undertaken by Mr A solely within that Region.
g. the Respondent to give a joint press release with IHREC promoting transparency in the approach taken in its provision of services in terms of travel documents, identification documents, proof of address and residence and account-opening procedures and services provided once an applicant becomes a customer. The press release to be published on the Respondent’s website on a page or link that is easily accessible and published also by way of press release in a national newspaper. The statement will state that the Respondent is committed to training and awareness of the preventative and remedial actions required by the protections afforded under the Acts.
Summary of Respondent’s Case:
The Complainant’s Notice of Complaint was received by the Workplace Relations Commission on 24th April 2018.
In this Notice of Complaint, the Complainant claims that he was discriminated against on grounds of his Syrian nationality when he attempted to open a bank account in the Bank.
In this case, the Bank Official who met with the Complainant in the Bank erroneously believed that the Bank is not permitted to open an account for Syrian nationals. This is incorrect. The Bank’s policies restrict officials from opening new accounts for Syrian Residents, as Syrian Residents are on the UN Sanctions List. The Bank permits accounts to be opened for individuals with refugee status, such as the Complainant.
This is not a case where the Bank is denying any wrong doing, or did not engage with the Complainant in relation to his complaint. The Bank’s senior manager has apologised promptly and repeatedly for the incident and has sought to rectify the situation by immediately offering to open an account for the Complainant and offering him a compensation payment.
The Bank does not discriminate against any individual on grounds of race, ethnicity or at all.
On 16th November 2017 the Complainant spoke to a Bank Official in a Branch in relation to opening a bank account. The Bank Official advised him that there was no one available in the branch to open an account at that time. The Bank Official explained that the account could be opened later that afternoon. As is standard practice, to ensure compliance with the Criminal Justice Act, the Bank Official requested a copy of the Complainant’s account opening documents, to ensure that the process was more streamlined when he returned in the afternoon. On seeing a copy of the Complainant’s refugee travel document, the Bank Official noted that the Complainant was from Syria. The Bank Official incorrectly advised the Complainant that the Bank was not permitted to open accounts for Syrian Nationals (due to the restrictions on the Bank in relation to the UN Sanctions List), apologised to the Complainant and he left the Branch. The branch was quiet at the time of the incident, and no members of the public were within earshot of the conversation between the Bank Official and the Complainant.
Following this incident, on 20th November 2017 the Complainant sent an ES1 to the CEO of the Bank and the Branch Manager. This letter was ultimately passed to Mr A, Regional Manager who has responsibility for this particular Branch.
Mr A wrote to the Complainant on 23rd November 2017. In this letter, Mr A apologised on behalf of the Bank for the incident and offered to meet with the Complainant to discuss the matter. Mr A assured the Complainant that he would take steps to investigate the incident.
In or around 23rd November 2017 Mr A spoke to the two Bank employees who were working at the time of the incident. From this conversation, Mr A identified the relevant Bank Official who had been dealing with the Complainant and identified that she had misinterpreted the Bank’s account opening requirements. Mr A explained the error to the Bank Official in question.
Mr A also contacted a number of branches in the Region to ensure that the training materials regarding account opening procedures had been interpreted correctly and to ensure that the Bank’s restrictions from dealing with individuals in Extreme High Risk Countries did not apply to those resident in Ireland (including those with refugee status). Mr A concluded from speaking to branch managers and branch officials that the training materials provided by the Bank was correctly understood and that the incident in the Branch was a once off incident. The Bank regularly opens bank accounts for those with refugee status in Ireland.
In addition, Mr A arranged for all branches in the Region to receive top-up training in relation to the Bank’s account opening procedures (to include training on the restrictions on account opening procedures). All branches in the region, including this Branch, received the top-up training within two weeks of Mr A arranging same.
On 24th November 2017 the Complainant wrote to the Bank stating that “the way I was treated by the Bank is upsetting and humiliating”. He also requested a copy of the Bank’s CCTV footage of the incident.
By letter dated 28th November 2017 Mr A wrote to the Complainant explaining that the Bank Official had misinterpreted the Bank’s account opening process, which led to the Complainant being informed that the Bank would not be in a position to open a bank account for him. Mr A again apologised and offered the Complainant the opportunity to open a Bank Account with the Bank.
By letter dated 1st December 2017, Mr A wrote to the Complainant to provide a substantive response to his complaint following his full investigation. In this letter, Mr A issued a further apology on behalf of the Bank for the failure to open an account for the Complainant. In the letter, Mr A offered the Complainant assurance that the Bank does not discriminate on grounds of race, or any other basis. Mr A continued to explain that in order to ensure adherence with international sanctions in place, the Bank does enter into certain banking relationships (including account opening) with parties’ resident in certain countries. Mr A explained that these restrictions did not apply to the Complainant’s case as he had been granted refugee status in Ireland. In circumstances, where the Complainant was legally entitled to live in Ireland, Mr A explained that the Bank’s usual Anti-Money Laundering procedures would have applied. Mr A confirmed that when a genuine error was made by the Bank’s staff and the Bank will admit this mistake and aim to rectify the mistake immediately. Mr A again offered the Bank to open an account for the Complainant and offered him a good will payment of €250.
The Complainant responded on 6th December 2017 stating that he would review the Bank’s responses to the ES.1 form before agreeing to meet with Mr A. This letter was acknowledged by Mr A on 15th December 2017.
On 19th December 2017, Mr A provided the Bank’s formal response to the ES.1. In this letter Mr A states: “At the bank, we establish new banking relationships with hundreds of new customers every day and I am pleased to count a number of customers among that group who are refugees in our country. Both I and my colleagues want every prospective customer who comes through the door of any of the Branches, regardless of their background or circumstance, to experience a welcome and an exceptional customer service … I want to take the opportunity to again reiterate and assure you that I regret the genuine error made by the staff member and the distress it caused to you”. Mr A again offered the Complainant the opportunity to open a bank account with the Bank and offered a compensation payment of €250.
Mr A issued a final, further letter to the Complainant in January 2018 again offering to engage with the Complainant in relation to the incident.
As part of its Regulatory Compliance Risk Management Framework, the Bank has policies in relation to Anti-Money Laundering (AML), Countering of the Finance of Terrorism and International Sanctions standards.
The Bank’s policies emanate from requirements of the Central Bank of Ireland, the Department of Justice and Equality which are in turn informed by the EU and the UN. The Bank’s Sanctions Policy states that:
“As part of its management of Sanctions Compliance Risk compliance with the sanctions regime, the Bank has established the following principles which must be applied across the organisation: … (b) not to commence or continue any relationships, or to knowingly provide financial services, process payments or undertake transactions with individuals in or resident in, or organisations whose place of business / trading address is based in country categorised by the Bank as Extreme High Risk. These countries are Iran, Syria, North Korea and Sudan (excluding South Sudan)”.
This list is informed by the Department of Justice and Equality’s guidance is consistent with the requirements of the Criminal Justice Act 2010. As the Complainant has refugee status in Ireland, and is not resident in Syria, the Bank’s Sanctions Policy does not apply to him.
The Bank trains branch staff in relation to account opening procedures, including AML processes and prevention of terrorist financing. Training was provided to the staff in 2017. In the training materials it stated: “The Bank will not establish customer relationships with individuals resident in an Extreme High Risk Country. The Extreme High Risk Countries are Sudan, Iran, North Korea and Syria”. The term “resident” is underlined in the documentation.
The slide continues:
“Persons resident in Extreme High Risk Countries:
Economic sanction transactions are generally legitimate transactions but involve sanctioned individuals, agencies, and instrumentalities and/or countries.
Advise the applicant that it is the Bank policy not to open an account for a person if they are resident in one of these countries”.
The incident involving the Complainant arose because a staff member misinterpreted the training that she received to mean that no Syrian passport holders could open an account with the Bank. The Bank has repeatedly apologised for this unfortunate incident, and Mr A took steps to ensure that this would not arise again in the Dublin Region.
It is essential to note that the Bank’s restrictions on dealing with Syrian residents does not apply to the Complainant. The Complainant is not a Syrian resident for the purposes of the regulations. The Complainant holds a refugee status, and therefore is not prevented or restricted from applying for a bank account with the Bank. For the avoidance of doubt, the Complainant does not have standing to challenge the Bank’s interpretation of the UN sanctions list.
The Bank does not discriminate against refugees. The Bank accepts the Irish Refugee Travel Document as an acceptable form of proof of identity for customers opening accounts, and has opened numerous accounts for customers with refugee status in Ireland who used that document. While the Bank accepts, and has always accepted, refugee travel documents as proof of identity since becoming aware of this incident, the Bank has updated its website to specifically refer to the fact that travel documents are accepted.
The Bank engages directly with the Department of Justice and Equality in relation to individuals with refugee status in Ireland. The Bank and the Department have a clear understanding in relation to programme refugees and have had numerous meetings to discuss how the Bank can facilitate existing and prospective customers with refugee status. The Department has confirmed that the Bank is the only financial institution in Ireland that is working with the Department in relation to this important issue. The Bank’s relationship with the Department clearly demonstrates its commitment to facilitating customers with refugee status establish themselves in Ireland.
The Complainant did not raise a complaint directly with the Bank in the immediate aftermath of the incident, but rather submitted an ES.1 form. On receipt of notice of the issue, Mr A contacted the Complainant and apologised to him, and offered him the opportunity to open a Bank account. The Complainant decided not to engage with the Bank, and selected to proceed with a complaint to the WRC. While it is accepted that the Complainant is fully within his rights to refer a case to the WRC, the Bank’s prompt and meaningful response to the Complainant’s complaint is a testament to the Bank’s commitment to equality and providing a high level of customer service.
As stated, the Bank trains all employees in relation to AML, and is satisfied that the training makes it clear that only customers resident in countries on the sanctions list come within the scope of the Bank’s sanctions policy. Having made enquiries of other branches in the Dublin Region, Mr A satisfied himself that this training was understood. The Bank Official’s error was regrettable, but thankfully isolated, and the Bank is not aware of any similar incidents arising in any other of its Branches. Refresher training was provided to all relevant staff in the Dublin Region to ensure that all staff understand the AML requirements. In addition, all employees are required to recomplete the training on AML annually.
The Complainant may attempt to draw a distinction between the present claim and the case ADJ-0008685 (the Iranian Case). Although the two cases involve financial institutions and individuals with a link to a country on the UN Sanctions List, the Iranian case does not have any bearing on this case. In the Iranian case, the Adjudication Officer held the respondent, a financial institution, had indirectly discriminated against its customer (an Iranian national) and her husband for requiring her to sign a declaration in order to prevent her account being closed. The declaration included a requirement to provide certain undertakings and provide the financial institution with indemnities in relation to her use of her own assets. When the claimant did not comply with these requirements, the claimant’s account with the financial institution was restricted. The Adjudication Officer held that the respondent’s policies on dealing with account holders who are linked to countries on the Sanctions list, including the requirement to complete a declaration, was disproportionate to its legitimate aim.
Unlike the Iranian case, the Complainant was not an existing customer with an established relationship with the Bank – which the adjudication officer in the Iranian case deemed relevant in assessing the actions of the financial institution. Furthermore, it is submitted that the impact of the alleged discrimination for the Complainant was not the same or similar to the impact on the customer in the Iranian case. While the Bank accepts that the Complainant was upset and frustrated by the Bank’s error, he has confirmed that he opened a bank account in another financial institution shortly after attending the Bank, and was not without a bank account for a significant period of time-therefore he did not suffer the same high level of inconvenience as the claimants in the Iranian case did. Furthermore, the Bank, on becoming aware of the issue apologised quickly and offered the Complainant the opportunity to open a bank account, and offered a goodwill payment. This is in contrast to the Iranian case where the claimant could clearly point to administrative inconvenience as a result of her account being restricted, her ability to use her money was severely inhibited.
It should be noted that the claimant in the Iranian case accepted that the Bank was entitled to perform enhanced due diligence in accordance with the UN sanctions list, albeit that the financial institution’s policies were not held to be proportionate.
Under the Equal Status Acts 2000 – 2015 a compensation payment can only be made to the Complainant if it is established that the individual has been subject to discrimination. The Bank Official in question believed that she was acting lawfully, which would have been permitted under Section 14 of the Acts.
Without prejudice to the foregoing, if the Adjudication Officer determines an award of compensation made, the Bank requests that the Adjudication Officer have regard to the preceding case law in this regard. It is respectfully submitted that, in determining appropriate awards of compensation, the Adjudication Officer must have regard to the impact of the alleged discrimination on a claimant and the conduct of the Respondent, both before and after the alleged discrimination took place.
In the present case, it is submitted that there has been no financial detriment or significant inconvenience to the Complainant. While the Bank accepts that the Complainant was upset by the incident, the Complainant himself says that he was able to open a bank account in a different bank later that day and suffered no financial loss or undue hardship as a result of the Bank’s misinterpretation of the requirements under the Criminal Justice Act.
The Bank immediately apologised and explained the situation to the Complainant and sought to rectify the situation. Mr A investigated the incident quickly and provided a detailed response to the Complainant in a timely manner. Mr A offered to meet with the Complainant numerous occasions and this offer was declined.
In recognition of the upset caused to the Complainant, the Bank offered to pay a compensation payment to the Complainant as a goodwill gesture.
Within 3 days of being notified of the incident, the Bank offered to open an account for the Complainant. This offer is still in place.
There was no ill intention towards the Complainant, or Syrian nationals whatsoever. The Bank Official believed that she was complying with the Bank’s procedures (which are consistent with the requirements of law) in explaining to the Complainant that the account could not be opened for him.
The Bank was quiet at the time of the incident and no members of the public were within earshot of the conversation between the Complainant and the Bank Official.
Following receipt of the complaint, Mr A ensured that top-up training was provided to staff in the Branch to prevent any further confusion. Mr A also made enquiries to other branches in the Dublin region to ensure that the Bank’s policies were being followed.
The Bank reserves the right to make further submissions in response to any further submissions made by the Complainant .
Findings and Conclusions:
There appears to be no argument to the facts of the case.
The representative of the Complainant has quite clearly stated that this was a contested hearing and the Respondent cannot, in the circumstances outlined, be taken to have acknowledged the gravity of what occurred or to have fully understood the impact of what occurred from the perspective of the Complainant.
The Complainant has stated that:
“whatever regret was expressed by one of the two agents of the Respondent on the date of the incident because of the war in Syria there was no apology at the time or explanation of the policy she believed she (and her colleague with whom she consulted) was following.
This complaint is not about two bank officials making a mistake. It is a case about how their mistake was allowed to happen. It is a case about how their mistake was highly likely to occur (it was foreseeable) without very careful steps being taken to ensure that it did not. It is ultimately a case about whether Syrian Refugees (and being Syrian in Ireland is commonly synonymous with being a Syrian Refugee) were and are the subject of the same service by the Respondent as those of different nationality or different nationality-defining characteristics”
The Complainant’s submission then states:
“Where any service provider of any size or sophistication, let alone a leading financial service provider such as the Respondent, is apprehended to have applied an explicit policy of direct discrimination based on nationality, there must be an extensive duty, unique perhaps to cases of explicit direct discrimination, resting on that respondent to ensure that such policies are precisely and carefully applied so as to avoid what occurred in this case”.
I find it difficult to disagree with this argument.
I would accept that the Respondent financial institution have policies on the subject of equality and criteria for opening bank accounts however on the day of the incident the two front line staff members of the Respondent, by their actions, appeared to be oblivious to any policy that may have been in place to cover such a situation. This reflects on the Respondent organisation and is, I believe, the complaint being presented by the Complainant and not the fact that a front-line member of staff made a mistake.
The Respondent quite clearly states that that it does not discriminate against refugees. The Respondent accepts the Irish Refugee Travel Document as an acceptable form of proof of identity for customers opening accounts and has opened numerous accounts for customers with refugee status in Ireland who used that document. While the Respondent accepts, and has always accepted, refugee travel documents as proof of identity, since becoming aware of this incident, the Respondent has updated its website to specifically refer to the fact that travel documents are accepted.
The Respondent has apologised to the Complainant over this incident and have offered to open a bank account for him and offered a compensation payment.
The Complainant is seeking a twofold remedy consisting of compensation and a course of action as specified in section 27(1) of the Act.
I now order the Respondent to pay compensation in the sum of €4,000 to the Complainant.
The Respondent quite clearly states:
“The Bank engages directly with the Department of Justice and Equality in relation to individuals with refugee status in Ireland. The Bank and the Department have a clear understanding in relation to programme refugees and have had numerous meetings to discuss how the Bank can facilitate existing and prospective customers with refugee status. The Department has confirmed that the Bank is the only financial institution in Ireland that is working with the Department in relation to this important issue. The Bank’s relationship with the Department clearly demonstrates its commitment to facilitating customers with refugee status establish themselves in Ireland”.
I now order the Respondent to engage directly with the Complainant’s representative, Irish Human Rights and Equality Commission, to explore areas of potential collaboration in order to minimise the possibility of any type of re-occurrence of the type of incident experienced in this case.
I would ask that both parties notify me in six months’ time to inform me of what progress has been made in this regard.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
As outlined above.
Dated: 25th March 2019
Workplace Relations Commission Adjudication Officer: Jim Dolan