ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017971
Parties:
| Complainant | Respondent |
Anonymised Parties | A Complainant | A Financial Services Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00023166-001 | 12/11/2018 |
Date of Adjudication Hearing: 17/09/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act and Section 25 of the Equal Status Act, 2000,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
This complaint is based on the Respondent’s decision to refuse the Complainant a loan |
Summary of Complainant’s Case:
The Complainant attended her local bank in July 2018 and filled out forms requesting a loan. On 10 August 2018 the Respondent wrote to her refusing her application. The Complainant replied to the Respondent on 25 August requesting reasons for the refusal On 12 September 2018 the Respondent replied citing repayment capacity as being the reason. The Complainant issued an ES1 form on 5 October 2018 setting out that the Respondent’s refusal of her loan application, by assuming a retirement age of 65, was unlawfully discriminatory, based on age. The Complainant issued a WRC complaint on 12 November 2018 claiming age-based discrimination In the process of the WRC proceedings the Complainant issued a freedom of information request in relation to all documents held by the Respondent in relation to her loan application and refusal thereof. On foot of this she did not receive anything material. |
Summary of Respondent’s Case:
The complaint has no jurisdiction because section 5 (2) (d) of the Equal Status Act 2000-15 permits a financial service provider to treat persons differently on grounds of age, where the difference in the treatment is related to the assessment of risk. However, the Respondent in the present case does not accept that it treated the Complainant differently on the basis of age, rather it refused her loan application based on repayment capacity, of which her age was only one criterion out of several that mitigated against loan approval. The Respondent at the adjudication hearing were not aware of an FOI request and were strangers to this request, however for the purpose of defending the complaint and to show evidence upon which the loan application was declined (not on the basis of age, but repayment capacity) it produced an internal document which set out specifically how her application was treated by its underwriters. This document, the details of which cannot be published for reasons of commercial sensitivity, clearly shows that the refusal was not based on age but on other criteria that are necessary and reasonable to apply to any such loan application and which were based on an assessment of her ability or otherwise to repay the loan. |
Findings and Conclusions:
An application was made by both parties to have this decision anonymised. The Complainant’s reasoning was that she did not wish to be identified to the public as someone who the Respondent regarded as having an incapacity to meet her debts. The Respondent did not wish their identity to be made known due to the commercially sensitive nature of their evidence at the Adjudication hearing. I consider both these reasons to be compelling but in particular I find that if the Complainant’s identity were made public, against her will, it might have the unintended effect of disincentivising another would-be complainant who would not want their private financial affairs to be placed in the public arena. For these reasons this decision will be published without identifying the identity of the parties. Substantive Complaint The submission raised by the Respondent is that an exemption under section 5(2)(d) of the Equal Status Acts 2000-15 pertains to this case and should be applied. This section permits difference in treatment, on the basis of age, if the decision to refuse a service “is effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely, or other relevant underwriting or commercial factors, and is reasonable having regard to the data or other relevant factors.” However, the section 5 (2) (d) exemption only relates to when a person is treated differently to another based on age, which has been denied by the Respondent in this case. The Respondent contends rather that the different treatment 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. For this reason I do not accept that the exemption applies and I have jurisdiction to consider this complaint. 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, as opposed to her age. The reason that I rely on is that the internal document produced by the Respondent at the hearing showed that based on criteria other than age, they forecasted, rightly or wrongly, that it was unlikely that she would be able to repay the loan. Furthermore and significantly, the Complainant’s belief that the Respondent had assumed a retirement age of 65 which then mandated their decision to refuse her application, is not evidenced in this document. Indeed her repayment capacity was forecasted by the Respondent to the age of 67 as well as 65. It is regrettable that this document could not have been shown or explained to the Complainant at the time she made her complaint. This would have enabled her to either furnish other documents which might have reversed their decision or at least would have provided her with grounds to appeal the refusal. In any event, it is probable that had the evidence been shown to her in advance, the complaint to the WRC might well not have been brought. In this respect I am concerned, although it falls outside my jurisdiction to investigate, that the freedom of information request made by the Complainant in advance of the Adjudication hearing, was not adequately responded to. However, the role of the Adjudicator in this case is to decide whether this complaint, of age-based discrimination, is or is not well founded. Based on the evidence available to me at the hearing, I find that the reason that the Respondent refused the Complainant’s loan application was, on the balance of probabilities, due to repayment capacity, as opposed to age. |
Decision:
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.
For reasons set out above I do not accept that the Complainant has established a prima facie case of age-based discrimination in contravention of section 5 (1) of the Equal Status Acts 2000-15 and therefore this complaint fails |
Dated: 23/09/19
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Age based discrimination – exemption under Section 5(2)(d) Equal Status Acts 2000-15 |