Complainant

Respondent

Parties

Ayman  Abdul Samad

Allied Irish Banks Aib

Complainant

Respondent

Parties

Ayman Abdul Samad

Allied Irish Banks

Representatives

Stephen Collins Irish Human Rights and Equality Commission

Mason Hayes & Curran LLP Mason  Hayes & Curran LLP

Act

Complain Reference No.

Date of Receipt

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

CA-00060618-001

19/12/2023

There are two complaints before me one relates to discrimination on the ground of race and the other is a claim that relates to harassment and how he was treated by AIB Branch staff. The claim of harassment was not detailed in the original notification to the service provider.

The Bank argue that there is only one complaint before the Adjudicator that of less favourable treatment on the ground of race. While the Complainant state that no prejudice arises to the Bank as the narrative consistent with a claim for harassment is contained in the communication made to the Bank.

The Bank stated that there is no substance to either complaint. That the Respondent has failed to establish a prima facie case so that they would be required to rebut any inference raised relating to racial discrimination.

The Complainant it is alleged was a valued customer and race at the beginning of the banking relationship or at the cessation of the relationship was irrelevant.

This case centres on why an account was closed and the Bank alleging that it took the action arising from patterns of transactions that raised some suspicions. The Bank state that they wrote to the Complainant about these transactions and there was no contact made with them.  It is alleged the actions taken by the Bank were entirely indifferent to any consideration of race and were related to the nature of the cash transactions captured on the account and the failure to engage with the Bank when requested to do so.

The Complainant’s bank statement between January and May 2023 record €26,000 cash withdrawals by way of ATM and consisting of 51 ATM cash withdrawals of €500 and 3 of €200-€220.

It is alleged that the Complainant had ample time to respond to the Bank’s queries and failed to do so prior to the account being closed. The Bank gave notice to the Complainant based on the contract between the customer and the Respondent that the account would close.

The Complainant was born in Syria and arrived in the State as part of the Irish Relocation Protection Programme in 2016. Under the scheme the Complainant was approved to open an account with the Bank at their Richmond branch and in 2017 he was granted refugee status. In May 2022 he became a naturalised Irish Citizen.

In 2022 the Complainant travelled to Turkey for dental treatment and withdrew cash in July and October 2022 for this treatment. In 2022 the Complainant got engaged to an Algerian national and visited Algeria in November 2022 for two months, prior to which he withdrew €7000 from the Bank to cover his expenses in Algeria.

In total the Complainant withdrew €21,000 between July 2022 and May 2023.

When the Complainant returned home from Algeria in August 2023, he found a letter dated the 9th of May 2023 from the manager of his Branch informing him that his account would be closed. The Bank was exercising its contractual rights and that with effect from close of business on the 9th of July 2023 the Banker/Customer relationship between them would cease.

The Complainant had €6200 savings left in his account which in effect he could not access.

On or about the 7th of August 2023 when he visited his branch he was treated rudely and provided with no explanation about the closure of his account other than no reason would be provided. He was informed that he could access his savings online; although, the letter was dated the 9th of May 2023 precluded this option.

A friend contacted the Bank also on the 7th of August 2023 and she was told that someone would ring back later in the day.

Dissatisfied by his treatment at the Richmond branch, on 9 and 10 August 2023, Mr Samad and a friend, Yousef Tamimi visited the Crumlin branch of the Bank, in order to determine why his account as closed, and to withdraw his remaining funds. On these dates, Mr Samad also visited the Rathgar branch of the Bank seeking an explanation. In total, he made four trips to two separate branches of the Bank over two days. On all occasions, the staff at the Bank advised they would contact the Richmond Street branch, to no avail.

On 11 August 2023, shortly before four pm, Mr Samad received a call from the Rathgar branch of the Bank, inviting him to attend the branch before the end of the working day, which for the Bank was four pm. Mr Samad rushed to the Rathgar branch, and the member of staff who had met him on 9 and 10 August 2023, withdrew from his account the remaining €6,200, without giving any further explanation as to why his account had been closed.

The Complainant is originally from Syria. He arrived in Ireland as a refugee fleeing the Syrian Civil War and commenced his relationship with the Bank whilst he was an applicant for refugee status. By his name, his skin colour, his former nationality, his comprehension of the English language, and his national origins, he is identifiable as not being of Irish ethnicity. Mr Samad asserts that a citizen who is of Irish ethnicity would have been treated more favourably than Mr Samad. In particular, the Complainant experienced less favourable treatment in three ways: i. Having his account closed without any prior inquiry undertaken by the Bank; ii. The Bank’s refusal to provide an explanation for the suspension after the closure of his account; iii. The Bank’s refusal to provide Mr Samad with his remaining funds at the earliest opportunity.

Further or in the alternative to the foregoing, the Complainant it is alleged had been harassed by employees, servants or agents of the Bank contrary to S.11 of the ESA. The Complainant was humiliated by being publicly refused the return of his own money on five occasions in August 2023. The Complainant it is alleged was treated rudely by staff, he was falsely promised calls by staff that they did not make, and, on one occasion, he was asked to leave the Bank’s premises. Through no fault of his own, his housing and his employment was compromised by the actions of the Bank, and he was forced to ask for money from his friends, notwithstanding that he had €6,200 in savings being held by the Bank.

On opening his account, the Complainant provided details of his name, address and place of birth.

The Respondent’s terms and conditions for current, demand and deposit and masterplan accounts, include express provisions in relation to closure of accounts. The right to close accounts can be actioned by either party. This right can be exercised by the Respondent giving two months’ notice, where no reason is offered or relied upon to terminate.

The Complainant’s ES1 form was received by the Respondent on the 7th of September 2023.

Having regard to the fact that the conduct now referenced as harassment is said to have occurred between 7-11 August 2023, the making of a first complaint of harassment in legal submissions is out of time and unfair, especially where none of the staff have been identified by name.

The Complainant is also alleging that he was discriminated on the ground of a disability. However, no reference is made that allegation in the legal submission nor was it raised in the notification to the Respondent in the ES 1 form.

The Complainant has made out no prima facie case where facts are established that shifts the burden of proof onto the Respondent.

The Complainant cannot identify any employee fitting the description as detailed by the Complainant on the relevant dates when he visited the branches relating to a male in his thirties with blond hair and blue eyes, who interacted with the Complainant on the 7th of August 2023.

The Complainant stated in his legal submissions that he visited the Rathgar branch on the 10th and the 11th of August 2023 and that he spoke with staff, and this is the first time the Respondent was made aware of that fact, and this may be in error.

The Complainant stated that he called the Respondent and was told someone would ring him back; however, he provides no detail of who he spoke to.

The Complainant’s claim in respect of discrimination is misconceived as there is no credible evidence or facts of significance that could give rise to an inference of discrimination that would require the Respondent to show that they not discriminate on the ground of Race.

The Respondent opened the account knowing the Complainant’s personal characteristics.

The facts show atypical banking transactions. The Complainant’s bank statements show that between January and May 2023 alone, the Complainant withdrew €26,120 in cash by way of ATM withdrawals. This amount was withdrawn by way of 51 separate ATM withdrawals. This behaviour is atypical and is not explained by the Respondent’s explanations.

These withdrawals were flagged by the Respondent’s automated monitoring system. The system is only concerned with financial transactions which are deemed atypical having regard to the type of account in question (personal or business). The system does not and cannot take into account protected characteristics of account holders, and flags accounts solely where unusual transactions are identified.

The Respondent also noted potential irregularities in the level of social welfare payments being received.

Based on these serious concerns regarding atypical cash transactions on the account, and potential irregularities in the level of social welfare payments being received, the Bank exercised its contractual right to close the account.

The Complainant had ample time to respond to the Bank’s correspondence and made no contact with the Bank; although, the letter to discontinue and close the account was sent on the 9th of May 2023. The Account has operated normally from the time it opened on the 6th of April 2018. The account is closed on the 11th of July 2023 and the Complainant contacts the Bank in August 2023.

No evidence was presented to ground a claim for discrimination on the ground of disability and that claim must be dismissed as misconceived.

While the claim of harassment was allowed to be heard and the complaint form amended that claim still requires that the Complainant to make out a prima facie case of harassment.

That must be linked to a ground as provided for in the Act.

The Complainant must make out a prima facie case.

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant must ‘prove on the balance of probabilities facts from which the tribunal could conclude, [this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

Harassment:

The Complainant has not established primary facts that are sufficient to establish a causal link between the ground of race and harassment. His direct evidence regarding the identities of any  employee who engaged in alleged  prohibited conduct is vague and location of the branches he visited are also unclear and cannot sustain a claim of harassment at a prima facie threshold.  

His friend who accompanied him to a branch could not assist with any additional clarity that would assist with grounding a claim for harassment based on a specific incident and conduct that would meet the threshold defined in law based on a fact that would give rise to such an inference.

5) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

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

As no person can be identified and there is such uncertainty about location and dates of such alleged conduct, a prima facie case has not been made out.

Similarly, while another friend gave evidence about a promise to call back that in itself is not sufficient to ground a complaint for harassment as that experience in fact is commonplace when dealing with such providers irrespective of race.

Therefore, as no inference of harassment has been met at a prima facie threshold, I must find that the Complainant was not harassed on the ground of race based on the conduct of staff at those branches.

The evidence of Ms Janis Noukea an AIB branch colleague is very credible and show  that she diligently engaged with the Complainant to ensure that the Bank released his funds, and this occurred on or about the 10th of August 2023.

Discrimination on the Ground of Race:

The strength of this case is significantly weighted on legal argument. I note the following case cited:

In A Syrian Refugee v A Bank ADJ-00013897, the WRC found: 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. (emphasis added)

The evidence presented by the Bank show that the pattern of atypical transactions led to the account being closed. There is no evidence presented  that gives rise to a prima facie case that because of race the account was closed. It was closed because of atypical transactions. It was also closed due to the failure of the Complainant to engage on time with the Bank.

The next argument that the failure of the bank to provide internal policies and records must meet the prima facie test of discrimination. This links to the fact that in such cases there is rarely a reason  given for closing the account.

However, at the hearing sworn evidence by a senior Bank manager who has responsibility for Financial Crime Advisory and Risk Management stated the atypical banking transactions solely gave rise to the account being closed. A detailed record of those transactions has been provided and to a neutral bystander they do meet the test of being atypical. In other words, the contract right to close the account was not unreasonable and it was exercised with good reason independent of any criteria relating to race. I note the reference to O’Sullivan v HSE [2023 IESC 11] and the emphasis in that decision that a discretion must be exercised reasonably. Based on the evidence given by that senior manager, I have must conclude that the discretion was exercised in a reasonable manner.  

The Bank did refuse to explain the reason after the closure and that was not reasonable as the communication was simply, we don’t have to give a reason. It is argued that was because of the Complainant’s race. On the face of that failure that arguably is a fact that  does meet the prima facie test as it is credible to maintain that an Irish customer is more likely to  have been given an explanation and reason. This is arguably speculative and on balance is made purely based on probability and closing an account should be based on a reason.

However, that  inference of discrimination can be rebutted. The transaction evidence and the how the system identifies atypical transactions demonstrate that the decision to close was impersonal. The failure to give an explanation by branch staff relates to the fact that bank must rely on a contractual right to close the account as to make any determination about such atypical transactions would be unlawful and breach obligations under natural justice. The Bank therefore relies on the contractual right to close the account without giving a reason. The entire factual matrix in this case must be considered and along with the atypical transactions the failure to engage with the Bank also contributed to the closure of the account. I find that the Bank therefore has rebutted this aspect of an inference of discrimination and the failure to give a reason when closing the account.

I find that the Bank did not engage in prohibited conduct and did not discriminate against the Complainant on the ground of race.

No evidence was presented to ground a claim for discrimination on the ground of disability and that claim must be dismissed as misconceived.

Harassment:

The Complainant has not established primary facts that are sufficient to establish a causal link between the ground of race and harassment. His direct evidence regarding the identities of employee and location of the branches he actually visited are vague and cannot sustain a claim at a prima facie threshold.  Therefore, as no inference of harassment has been met at a prima facie threshold, I must find that the Complainant was not harassed on the ground of race based on the conduct of staff at those branches.

The evidence of Ms Janis Noukea  is very credible and show  that she diligently engaged with the Complainant to ensure that the Bank released his funds and this occurred on or about the 10th of August 2023.

Discrimination on the Ground of Race:

The strength of this case is significantly weighted on legal argument. I note the following case cited:

In A Syrian Refugee v A Bank ADJ-00013897, the WRC found: 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. (emphasis added)

The evidence presented by the Bank show that the pattern of atypical transactions led to the account being closed. There is no evidence presented  that gives rise to a prima facie case that because of race the account was closed. It was closed because of atypical transactions. It was also closed due to the failure of the Complainant to engage on time with the Bank.

The next argument that the failure of the bank to provide internal policies and records must meet the prima facie test of discrimination. This links to the fact that in such cases there is rarely given a reason to explain exactly why the account was closed. However, at the hearing sworn evidence by a senior Bank manager was given that stated the atypical banking transactions solely gave rise to the account being closed. A detailed record of those transactions has been provided and to a neutral bystander they do meet the test of being atypical. In other words, the contract right to close the account was not unreasonable and it was exercised with good reason independent of any criteria relating to race. I note the reference to O’Sullivan v HSE [2023 IESC 11] and based on the evidence given by that senior manager, I have must conclude that the discretion to close an account was exercised in a reasonable manner.

The Bank did refuse to explain the reason after the closure and that was not reasonable. It is argued that was because of the Complainant’s race. On the face of that failure that does meet the test of meeting a prima facie test as it is credible to maintain that an Irish customer would have been given an explanation. However, that  inference can be rebutted.

The transaction evidence and how the system identifies atypical transactions demonstrate that the decision to close was impersonal. The failure to give an explanation by branch staff relates to the fact that the  Bank must rely on a contractual right to close the account as to make any determination about such atypical transactions would be unlawful and breach obligations under natural justice. The Bank therefore relies on the contractual right to close the account without giving a reason, although atypical transactions and the failure to engage is the reason. That decision is driven by a risk management model based on atypical transactions and has nothing to do with race. The entire factual matrix in this case must be considered and along with the atypical transactions the failure to engage with the Bank also contributed to the closure of the account. The process is impersonal and is solely based on patterns of atypical transactions applied to all customer accounts. I find that the Bank therefore has rebutted this aspect of an inference of discrimination and the failure to give a reason when closing the account.

I find that the Bank did not engage in prohibited conduct and did not discriminate against the Complainant on the ground of race.

Direct Discrimination-Harassment-Race-Closing Account