Complainant

Respondent

Parties

Sean  Connolly

Pepper Finance Corp (Ireland) DAC

Pepper Finance Corporation (Ireland) Dac

Representatives

 Self-represented   

MP Guinness BL instructed by Diarmuid Noonan of Mason Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00071387-001

07/05/2025

The Complainant referred this claim to the Director General of the WRC on 7 May 2025.

The Complainant alleged that he was discriminated against and harassed by the Respondent on the grounds of his age. 

The Respondent rejects the claim.

In the interests of fairness and efficiency all the Complainant’s complaints against the Respondent pursuant to the Equal Status Acts, namely ADJ-00049884, ADJ-00054101, ADJ-00057143 and ADJ-00058855 were listed for a hearing on 17 December 2025.

The first hearing date of the Complainant’s first claim (ADJ-00049884) was set for 26 June 2024. The Complainant requested, and was granted, a postponement. A further hearing date was set for 13 November 2024. The Complainant sought and was granted a postponement on consent.

On 3 December 2024, the Complainant wrote to the WRC requesting that his complaints be referred to the WRC Investigation/Inspection Department. The WRC replied to the Complainant on7 January 2025, to inform him that there is no option within the remit of the WRC for an investigation of a claim pursuant to the Equal Status Acts by the WRC lnspection Services. The Complainant was further informed that the complaint would proceed to scheduling for adjudication and should he not wish to proceed with this complaint, he could withdraw same in writing.

The Complainant replied on 14 January 2025 stating that the complaints could proceed to adjudication.

The third hearing was scheduled for 4 June 2025. It was postponed on the Respondent’s request.

The fourth hearing was scheduled and proceeded on 17 December 2025.

The Complainant submits as follows.

On 30 January 2025, the Respondent through its agents attended the Cork Circuit Court at a hearing before the County Registrar and prosecuted or attempted to prosecute the enforcement of a mortgage contract clause that is ageist, discriminatory and contrary to the Equal Status Act 2000, as amended.

The Complainant submitted that the Respondent has harassed him.

The Complainant submitted that, although separate and distinct from his previous ESA complaints, this current ESA complaint No. 5 is similar in that it concerns a complaint regarding age discrimination in respect of his mortgage. It is different and distinct in that it contains additional complaints regarding harassment in connection with the age discrimination complaint. This current ESA complaint No. 5 also contains a request for additional information which the Complainant believed would support all of his complaints.

History and background

October 2005: the Complainant took out a c.€370,000 mortgage with Bank of Scotland in Ireland, (BOSI), on his primary residence.

It was an interest only loan for a term of 13 years with the full sum being payable at the expiry of the term. The Complainant submits that when he queried why he was not being offered a longer term, the BOSI official informed him that they did not extend terms on primary residences beyond the 65th birthday of the customer. The Complainant submits that the official was very clear: the sole reason for the relatively short 13-year term was the Complainant’s age.

The Complainant submits that his intention had been to repay the loan from the proceeds of various investment properties that he then had. Due to the 2008-2010 property crash all but one of those rental properties have been placed in receivership.

October 2019: the term of the loan expired, and the Complainant was unable to repay the loan. The Complainant continued and had at all times continued to pay full interest on the loan including during the MARP period October 2019-October 2021.

Spring 2022: the Complainant’s circumstances improved dramatically and from April 2022 he began to repay capital as well as full interest on a voluntary basis.

6 June 2022: the Complainant forwarded to the Respondent a financial plan for the repayment in full of the loan on his primary residence in three tranches of €100K, €100K and €160K over a then 55-month, now 35-month period. That is by 31 December 2026. Other than acknowledging receipt of “your letter of 6th June 2022" and "we note its contents" the Respondent has made no written response whatever to the financial plan. (For legal reasons the Complainant withdrew the repayment proposal contained in this plan on 17 July 2023. Without prejudice to this withdrawal the Complainant has continued to make capital payments additional to his full monthly interest payments.)

17 May 2023: the Respondent served notice that it intended to attempt to repossess the Complainant’s home at the Cork Circuit Court hearing on 26 July 2023.

It was while the Complainant was preparing his defence for the Circuit Court hearing that it became clear:

1.      That the 13-year term of the original mortgage contract was ageist, discriminatory and contrary to the Equal Status Act 2000 as amended.

2.      That the Respondent’s suit rested solely on this illegal clause and that the Complainant was otherwise fully compliant with all the other terms of the mortgage.

3.      That the Respondent attempted enforcement of an illegal mortgage clause was itself an ageist, discriminatory and illegal act.

26 July 2023:  the Respondent through its agents and at the Cork Circuit Court prosecuted or attempted to prosecute the enforcement of a mortgage contract that is ageist, discriminatory and contrary to the Equal Status Act 2000, as amended. The case was adjourned until 22 February 2024.

20 September 2023: the Complainant forwarded to the Respondent, by registered post, a formal complaint under the Equal Status Act 2000, as amended, that included a covering letter and complaint forms ES1 and ES2. In the complaint, the Complainant asked the Respondent to cease and desist its attempts to enforce an illegal contract and to extend the term of the above loan on the Complainant’s primary residence from 13 years to 25 years, that is, until October 2030. The Complainant received no response to the formal complaint.

15 November 2023: the Complainant sent to the Respondent a reminder, by registered post, along with a copy of his formal complaint of 20 September.

21 November 2023: the Respondent acknowledged receipt of the reminder and stated that it had commenced investigations.

15 December 2023: letter from the Respondent. The Respondent stated that it “cannot comment on matters that occurred prior to your account transferring from Bank of Scotland to Pepper". The Respondent did not contest that the 13-year term was ageist and discriminatory nor did it contest that on 26 July 2023 it attempted to enforce an ageist and discriminatory mortgage clause.

16 January 2024: the Complainant referred ESA Complaint No. 1 to the WRC.

2 February 2024: Acknowledgement of receipt of ESA Complaint No. 1 from WRC, namely WRC Adjudication File Ref: ADJ-00049884.

28 February 2024: Hearing at Cork Circuit Court/County Registrar’s Court, regarding the Respondent’s Civil Bill for the repossession of the Complainant’s home where the Respondent again prosecuted or attempted to prosecute the enforcement of a mortgage contract that is ageist, discriminatory and contrary to the Equal Status Act 2000, as amended. The Respondent failed to disclose to the Circuit Court that the matter was with the WRC and opposed the Complainant’s request for a 6-month adjournment while the matter was being considered by the WRC. The case was adjourned until 15 May 2024.

1 March 2024: the Complainant received a letter from WRC stating the Mason, Hayes and Curran LLP, solicitors, are on record with WRC as representing the Respondent.

23 April 2024: the Complainant lodged his second ESA Complaint No.2 with the Respondent in respect of the Respondent’s attempt to repossess his home on foot of a discriminatory mortgage clause. It is similar to the Complainant’s first ESA Complaint No. 1 in that it concerns a complaint regarding age discrimination in respect of his mortgage. It is different and distinct in that it contains a complaint regarding harassment in connection with the age discrimination complaint. The Complainant’s second ESA Complaint No.2 also contains an extensive request for information which the Complainant believed would support his complaints.

15 May 2024: hearing at Cork Circuit Court/County Registrar’s Court, regarding the Respondent’s Civil Bill for the repossession of the Complainant’s home where the Respondent again prosecuted or attempted to prosecute the enforcement of a mortgage contract that is ageist, discriminatory and contrary to the Equal Status Act 2000, as amended. The Respondent again failed to disclose to the Circuit Court that the matter was with the WRC and did not support the Complainant’s request that the Circuit Court case be adjourned while the matter was being considered by the WRC. The case was adjourned until 23 October 2024.

27 May 2024: The Complainant received Supplementary Affidavit from the Respondent in respect of the Respondent’s Civil Bill for the repossession of his home. The Affidavit referred to a “complaint" that the Complainant had made but failed to disclose that it was a formal complaint under the Equal Status Acts, failed to disclose that the Complainant had made two formal ESA complaints and failed to disclose that one of these ESA complaints was with the WRC. The Affidavit again sought repossession of the Complainant’s home without referring to the fact that the matter was under consideration by the WRC.

30 May 2024: Hearing at WRC scheduled for 26 June 2024 regarding the ESA Complaint No.1, namely WRC Adjudication File Ref: ADJ-00049884, postponed until a later date at the Complainant’s request.

4 June 2024: The Complainant sent a reminder to the Respondent regarding his second ESA complaint No. 2 of 23 April 2024 along with a copy of same and requested an acknowledgement of receipt of same along with a written response. As of 20 August 2024, the Complainant has received neither.

9 July 2024: the Complainant lodged a third ESA Complaint No. 3 with the Respondent in respect of further and ongoing harassment enacted by the Respondent subsequent to the lodgement of the Complainant’s two earlier ESA complaints.

20 August 2024: in the absence of either an acknowledgement or a response of any description, the Complainant referred his second ESA Complaint No.2 to the WRC, (subsequently designated WRC Ref: CA-00065568-001/ADJ-00054101).

3 September 2024: the Complainant sent the Respondent a reminder regarding his ESA Complaint No. 3 along with a copy of the complaint.

11 September 2024: the Respondent acknowledged receipt of a "complaint" that it claims that it received on 4 September 2024. (Presumably this is a reference to the Complainant’s reminder and a copy of ESA Complaint No. 3 posted on 3 September 2024 and that the Complainant originally lodged on 9 July 2024). The Respondent does not acknowledge that this “complaint" is a formal complaint under the ESA.

24 September 2024: The Complainant’s ESA Complaint No. 2 formally validated and registered by WRC as Ref: CA-00065568/ADJ-00054101. The Respondent officially notified of same.

2 October 2024: the Complainant received a letter from the Respondent stating that its response to the Complainant’s 'complaint', (presumably ESA Complaint No. 3) has been delayed while the Respondent collates information. The Respondent will contact the Complainant again in 20 days. The Respondent did not acknowledge that the 'complaint' is a formal complaint under the ESA nor did it acknowledge that it originally received the complaint on 9 July 2024, almost 3 months previously.

15 October 2024:  Letter from WRC proposing 13 November 2024 as hearing date for the Complainant’s two complaints namely WRC Ref: ADJ-00049884 and ADJ-00054101.

16 October 2024: Letter from the Respondent acknowledging for the first time that the Complainant had made a complaint under the ESA and stating that Mason Hayes & Curran would respond within 10 days, i.e. by 29 October 2024 (two weeks before the expiry of the 6-month deadline for the lodgement of the complaint with the WRC). From 15 October 2024 until 4 November 2024 the Complainant has received no further communication from the Respondent or its agents.

22 October 2024: The Complainant requested the WRC to postpone the hearing date on the grounds of inadequate response and inadequate information from the Respondent and requested that his complaints be referred to the Investigation Directorate.

23 October 2024: a hearing before County Registrar at Cork Circuit Court where despite the Complainant’s pointing out that the matter was being considered by the WRC, the Respondent insisted that the case be transferred to the 'Judges List', that is, to a full hearing before a judge of the Circuit Court. The case was so transferred.

31 October 2024: A letter from WRC. Proposed hearing date of 13 November postponed at the Complainant’s request.

4 November 2024: the Complainant referred his third ESA Complaint No. 3 to the WRC.

19 November 2024: the Complainant received a letter from WRC stating that the Respondent had been invited to mediation but had not responded.

10 December 2024: the Complainant posted ESA complaint No. 4 to the Respondent by registered post.

9 January 2025: the Complainant received a letter from the Respondent’s solicitors AMOSS LLP notifying him of a Circuit Court hearing on Thursday 30 January 2025 and that his home was liable to repossession at this hearing.

30 January 2025: Attended Circuit Court before a Circuit Court judge where the Complainant requested an indefinite adjournment pending the outcome of the complaints at the WRC. The Respondent’s representative did not support the request and implicitly resisted it. The case was adjourned until a date in June/July 2025.

18 February 2025: the Complainant forwarded his fourth ESA Complaint No. 4 to the WRC.

28 February 2025: the Complainant received an acknowledgement of his complaint No. 4 (ADJ-00057143).

18 March 2025: the Complainant posted an ES1 form regarding the current complaint No. 5 to the Respondent.

15 April 2025: the Complainant received a letter from the WRC enclosing an email from the Respondent requesting a WRC hearing to be scheduled as soon as possible.

17 April 2025: the Complainant received a letter from the WRC scheduling a hearing on 4 June 2025.

6 May 2025: the Complainant posted his fifth complaint to the WRC.

With his complaint referral form, in a 112-pages document, the Complainant forwarded to the WRC copies of his ES1 form, correspondence with the Respondent and his request for information containing some 202 questions.

At the adjudication hearing, the Complainant confirmed that this claim relates to the repossession proceedings at the Circuit Court on 30 January 2025. The Complainant alleged that by its attempt to enforce a contract that, in his view, was illegal, the Respondent discriminated against him on the grounds of his age. The Complainant further alleged that the Respondent’s ongoing attempts to enforce the contract which, in his view, was illegal constituted harassment on the age ground.

Preliminary matter – time limit

At the adjudication hearing, the Complainant submitted that in 2005 he was offered by BOIS a 13-year mortgage strictly because of his age. At the time, he said, he did not know it could be discriminatory. The Complainant submitted that back in 2005 the term of his mortgage was discriminatory. The Complainant asserted that the contract was, therefore, illegal. If there was an illegal term in the contract, passage of time does not make it legal. The Complainant further asserted that, from time to time, an illegal term could be included in a contract, but it only transpires when this illegal term is enforced. Therefore, the enforcement act is not in compliance with the Equal Status Act. The Complainant asserted that, only when he got called to court in July 2023, he realised that it was illegal. The Complainant said that he had not known before that the contract was illegal and that he was entitled to a longer mortgage. Once the Respondent tried to enforce an illegal contract, the Complainant lodged his ES1 form within two months.

The Complainant submitted that every time the Respondent attempts to enforce the illegal contract, the clock starts ticking again.

The Complainant submitted that the first attempt to enforce the illegal contract in July 2023 was the first act of discrimination. Each of the court hearings thereafter was a separate act of discrimination and harassment.

The Complainant submitted that, if someone asks for 25-year mortgage but is told they are too old, it makes the contract illegal. The Complainant alleged that the person who dealt with his mortgage told him he was too old. The Complainant said that BOIS definitely discriminated against him.

Substantive matter

Regarding the substantive matter, the Complainant, again, asserted that the attempted enforcement of an illegal contract was in itself discriminatory.

The Complainant said that, as a gesture of good will he made some payments and asked for the repossession to be paused until the WRC case is concluded. The Respondent refused to do so. The Complainant said that he also asked the Circuit Court proceedings to be adjourned. The Complainant submitted that the refusal to consent to the adjournment and subsequent letters refusing to delay repossession constituted harassment. Hence, the subsequent claims referred to the WRC.

The Complainant clarified that

·        ADJ-00049884 referred to the WRC on 17 January 2024, relates to the alleged discrimination on the grounds of age concerning the Circuit Court proceedings on 26 July 2023;

·        ADJ-00054101-

§  CA-00065568-001 referred to the WRC on 21 August 2024 relates to the alleged discrimination and harassment on the grounds of age concerning the Circuit Court proceedings on 28 February 2024;

§  CA-00065568-002 referred to the WRC on 6 November 2024 relates to the alleged discrimination and harassment on the grounds of age concerning the Circuit Court proceedings on 15 May 2024;

·        ADJ-00057143 referred to the WRC on 19 February 2025 relates to the alleged discrimination and harassment on the grounds of age concerning the Circuit Court proceedings on 23 October 2024;

·        ADJ-00058855 referred to the WRC on 7 May 2025 relates to the alleged discrimination and harassment on the grounds of age concerning the Circuit Court proceedings on 30 January 2025.

The Complainant submitted that his case rests on the illegal term of the mortgage contract that the Respondent attempts to enforce.

The Complainant submitted that because of the lack of engagement on part of the Respondent, he had to “throw the kitchen sink” in his requests for information.

The Complainant stated that it was quite possible that there were other people who got 13-year mortgages and had their houses repossessed.

The within submissions are furnished on behalf of the Respondent in respect of the Complainant’s claims under the Equal Status Act 2000, as amended (the “ESA”), alleging age discrimination and harassment on grounds of age, by way of the Respondent seeking to enforce a mortgage which the Complainant alleges is discriminatory on grounds of age.

The Respondent is a Designated Activity Company (Limited by Shares) with a registered office at Fourth Floor, Two Park Place, Upper Hatch Street, Dublin 2. The Respondent services loans and mortgages in the Republic of Ireland. For the avoidance of doubt, the Respondent does not offer new residential mortgages in Ireland.

The following claims have been lodged with the Workplace Relations Commission (the “WRC”) by the Complainant:

a)      claim of age discrimination on 16 January 2024 (“Claim 1”);

b)     claim of age discrimination and harassment on 20 August 2024 (“Claim 2”);

c)      claim of age discrimination and harassment on 4 November 2024 (“Claim 3”)

d)     claim of age discrimination and harassment on 18 February 2025 (“Claim 4”); and

e)     claim of age discrimination and harassment on 6 May 2025 (“Claim 5”); and

f)       claim of age discrimination and harassment on 2 September 2025 (“Claim 6”).

(together, the “Claims”)

The Complainant is in default of discharge of a mortgage and the Respondent has issued repossession proceedings in the Cork Circuit Court seeking repossession of this property.

The Complainant seeks for the Respondent not to enforce the mortgage on the basis that he alleges the mortgage contract is illegal as being discriminatory on grounds of age. He also alleges he has been subjected to harassment on grounds of age.

The foregoing claims are denied in its entirety. Rather since October 2019, the Respondent has made extensive efforts to engage with the Complainant in good faith regarding mortgage arrears on his property. The Complainant, however, has failed or refused to engage with the Respondent’s repeated invitations to discuss alternative repayment arrangements.

As a result of the continued default and in the absence of engagement with the Respondent, the Respondent proceeded with enforcement steps in accordance with the terms of the mortgage.

The Respondent strongly denies the allegations of discrimination and harassment.

Background

On 10 October 2005, the Complainant took out a mortgage from Bank of Scotland (Ireland) Limited (“BOSI”), on a named property. This loan was advanced for a 13-year period and was an interest only loan of circa €370,000.

The Respondent is the appointed credit servicer and legal title holder to the loan held by the Complainant at the named property. The Respondent did not originate or underwrite the mortgage and played no role in the initial assessment, approval or terms of the mortgage. The Respondent does not offer new residential mortgages.

The Complainant alleges that at the time of taking out the mortgage in question, he was advised by BOSI that the sole reason he was not being offered a longer-term mortgage was due to his age. The Respondent is not able to respond to this alleged comment, as the Respondent was not involved in any such conversation, as this was prior to the loan being transferred from BOSI. BOSI transferred the Complainant’s mortgage, along with all other BOSI owned mortgage loans in the retail sector, to the Respondent on 28 September 2018.

Termination of mortgage

The term of the mortgage expired on 5 October 2019, after which the full outstanding balance of the loan became payable.

After this date, a Mortgage Arrears Resolutions Process (“MARP”) in accordance with the Central Bank of Ireland Code of Conduct on Mortgage Arrears 2013 (“Code of Conduct”) commenced.

Temporary Alternative Repayment Arrangement (“TARA”)

On 1 October 2019, the Respondent wrote to the Complainant seeking clarification on the Complainant’s outstanding balance on the mortgage and offering a Temporary Alternative Repayment Arrangement (“TARA”) if he was not in a position to discharge the loan. This proposed TARA consisted of 12 interest only monthly repayments of €386.23, commencing on 20 October 2019 and ending on 20 October 2020. This was an extension of the Complainant’s mortgage, up to the age of 66. The Complainant did not discharge the balance of the loan on 5 October 2019, nor did he respond to the Respondent’s letter dated 1 October 2019.

From 9 October 2019 - 20 May 2020, the Respondent placed a number of calls to the Complainant asking him to confirm his acceptance of the TARA. These calls were unsuccessful.

The proposal to put in place a TARA was in line with the Code of Conduct, which states that:

“a lender may agree with the borrower to put a temporary alternative repayment arrangement in place where a delay in putting an alternative repayment arrangement in place will further exacerbate a borrower’s arrears or pre-arrears situation. Such a temporary alternative repayment arrangement should be for a limited period of time but it should be sufficient to enable the lender to receive and complete a full review of the standard financial statement”.

Mortgage arrears resolution process (“MARP”)

The term of the mortgage loan ended on 5 October 2019 and at this time, the MARP commenced regarding the arrears on the Complainant’s mortgage.

From 25 November 2020 - 18 January 2022, the Respondent made a number of calls to the Complainant to understand whether he planned to clear the arrears on the mortgage account. These calls were unsuccessful.

Continued non-cooperation of Complainant and appeal

On 26 November 2021, the Respondent wrote to the Complainant to notify him of the continuing arrears on his mortgage account. At this stage in time, the arrears were €373,320.78, with the Respondent’s letter informing the Complainant of the risk of him being classified as non-cooperating within the meaning of the Code of Conduct. The Complainant was asked to contact the Respondent to discuss his mortgage and to complete a Standard Financial Statement (“SFS”) and return same to the Respondent. The implications of being classified as non-cooperating were included in this correspondence. For reference, the SFS is described in the Code of Conduct as:

“the document which a lender must use to obtain financial information from a borrower in order to complete an assessment of that borrower’s case, notified by the Central Bank of Ireland to lenders”.

The Code of Conduct further goes on to state that:

“A lender must use the standard financial statement to obtain financial information from a borrower in arrears or in pre-arrears.

In relation to all MARP cases, a lender must:

a)     provide the borrower with the standard financial statement at the earliest appropriate opportunity;

b)     offer to assist the borrower with completing the standard financial statement; and

c)      inform the borrower that he/she may wish to seek independent advice to assist with completing the standard financial statement, e.g., from MABS or an appropriate alternative”

On 11 January 2022, the Respondent wrote to the Complainant to inform him that he was now classified as non-cooperating under the Code of Conduct.

On 2 February 2022, the Complainant wrote to the Respondent to appeal the decision to classify him as non-cooperating claiming:

a)      he had never missed a monthly payment since taking out his mortgage and had prepaid his monthly interest payments in full until June 2022;

b)     the repayment of the loan was reliant on the valuation of his home and there was uncertainty regarding same; and

c)      he wished to defer the valuation of his home to avail of rising property prices.

The Complainant did not raise any concerns in relation to discrimination in his appeal letter.

An appeals board of the Respondent considered the Complainant’s appeal. On 31 March 2022, the Complainant’s appeal was rejected on the basis that he had not meaningfully engaged with the ASU or provided an SFS. The outstanding balance on the mortgage account at that time was noted to be €371,298.97 and the Appeals Board noted the term of the mortgage had expired.

On 27 April 2022, the Complainant raised queries regarding the appeal, the appeals panel and its process. These were responded to by the Respondent on 30 May 2022.

Engagement with Arrears Support Unit (“ASU”)

On 16 March 2021, the Respondent wrote to the Complainant, asking him to contact the ASU regarding the arrears on his mortgage and warning him of the risks of non-cooperation. This was followed up with correspondence from the Respondent on 10 November, 26 November and 14 December 2021.

On 14 January 2022, the Complainant contacted the Respondent and stated that he would clear the full loan outstanding amount and asked that he be put back into the MARP process. The Respondent advised the Complainant via telephone call, on 27 January 2022, that he needed to complete an Income and Expenditure (“I&E”) form in order to assess his account for an interim repayment plan. The I&E form is a regulated form that the borrower must fill out and return in order to be assessed for an Alternative Repayment Arrangement.

In 2022, the Complainant made a number of payments to the Respondent on a voluntary basis, as set out below:

8 June 2022 - €2,000; 20 July 2022 - €2,000; 17 August 2022 - €150; 22 August 2022 - €2,000; 20 September 2022 - €2,000; 20 October 2022 - €2,000; 24 October 2022 - €375; 14 November 2022 - €600.

On 27 January, 2 February and 23 May 2022, the Respondent made calls to the Complainant requesting that an I&E form be completed in order to assess his account for an interim repayment plan (“IRP”), but these calls were unsuccessful.

On 1 June 2022 the Respondent wrote to the Complainant outlining that he was in default, that MARP no longer applied, and that the Complainant was therefore required to pay the entire balance, totalling €370,056.41. On 6 June 2022, the Complainant forwarded a full and final settlement offer to the Respondent, which provided for payments in three stages by 31 December 2026 and requesting the interest only repayments be extended from 13 years to 25 years.

Between 22 June 2022 and 31 May 2023, a number of calls were made by the Respondent requesting the completion of the I&E form in order for an IRP to be considered, but all of these calls were unsuccessful. Correspondence was sent to the Complainant trying to contact him generally, or in relation to the need to fill out the I&E form, on:

22 June 2022; 24 June 2022; 6 July 2022; 14 July 2022; 27 July 2022; 14 September 2022; 18 October 2022; 21 November 2022 (including noting the Complainant had made a number of payments); 17 February 2023; 21 March 2023; 8 May 2023; 12 December 2023; 18 December 2023; 3 January 2024.

There were a number of visits by servants and or agents of the Respondent to the Complainant’s home – in July 2022, as notified by the Respondent on 6 July 2022.

Following the repossession proceedings, the Respondent wrote on 24 July 2023 to inform the Complainant of a potential solution to keep him in his home by way of a lifetime loan offered by Spry Finance.

The Complainant raised concerns of alleged discrimination by way of ES1 form on 19 September 2023, which was responded to on 13 December 2023. This response letter detailed that:

a)      despite extensive efforts at engagement, the Respondent was not able to contact the Complainant to meaningfully engage in resolving matters;

b)     due to said non-engagement, no alternative repayment arrangement (“ARA”) existed, so the Respondent would not cease repossession proceedings; and

c)      despite numerous requests to do so, the Complainant did not complete the required I&E form, required for the Respondent to consider an ARA, nor did he otherwise provide the Respondent with the necessary information required for any such assessment to take place.

Re-possession proceedings

On 1 June 2022, the Respondent issued a default demand letter pursuant to the mortgage agreement, stating that a default had occurred as the full mortgage balance, plus interest, had not been repaid and notified the Complainant that repossession proceedings could commence if the balance was not paid in full.

Correspondence issued from the Respondent’s solicitors, on 5 August 2022 asking for repayment of the outstanding debt or to vacate the property, failing which repossession proceedings would commence.

Further correspondence issued from the Respondent’s solicitors between 8 August 2022 and July 2023. In circumstances where no resolution in relation to the outstanding debt could be reached with the Complainant, repossession proceedings issued in 2023 by way of a Civil Bill, and these are currently before the Circuit Court in Cork.

The Complainant first raised concerns of alleged discrimination on 17 July 2023, shortly before the scheduled Circuit Court hearing on 26 July 2023. In this letter, the Complainant also withdrew his proposal for a financial plan.

The repossession proceedings have been adjourned on a number of occasions and were transferred to the Judges list by the County Registrar on 23 October 2024. The repossession proceedings stand adjourned and are next listed in the Judges List for January 2026.

Legal Submissions

Preliminary issues

Out of time

The Respondent submits that the Complainant’s concerns regarding the alleged discriminatory nature of the mortgage, which underpins each of the claims, is out of time.

The Complainant’s first ES1 Form is dated 19 September 2023.

The Respondent relies on section 21 of the Equal Status Act Redress in respect of prohibited conduct.

In Salesforce.com –v- Alli Leech Determination EDA 1615, the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The court stated:

“the established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this court in Labour Court determination DWT0338 Cementation Skanska –v- Carroll.” Here, the test was set out in the following terms: - “It is the Court’s view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the fact and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon, hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the court, as a matter of probability, that had the circumstances not been present, he would have initiated the claim on time”.

In that case, and in subsequent cases in which the question arose, the Court adopted an approach analogous to that taken by the superior courts in considering whether time should have been extended for “good reason” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance –v- CPSU and Others 2007 18ELR 36. The test formulated in Cementation Skanska –v- Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell –v- Dun Laoghaire Corporation 1991 ILRM 30. Here Costello J (as he then was) stated as follows:

“the phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she were justified in delaying the institution of proceedings. What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay in and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay. Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account”.

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

In that case, the court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay.

In Employee v An Employer UD1264/2008 the Employment Appeals Tribunal held that:

“The Tribunal has been set up under statute by the Oireachtas in pursuance of its constitutional powers as legislature. The Tribunal will always have regard to legal and constitutional rights in exercising its limited jurisdiction but it cannot assume extra legal authority to hold a hearing into an alleged unfair dismissal claim which is statute barred. Such an action would be in fundamental breach of its powers and would, quite rightly, be overturned by the courts.”

Having regard to the fact that the Complainant first issued his ES1 form on 19 September 2023, with the mortgage deed having been entered into on 10 October 2005, this represented a notification made over 17 years after the behaviour complained of, which is substantially outside all the above referenced time periods. The Complainant was fully aware of the duration of the mortgage when he took it out in October 2005, and he claims that he was expressly advised at that time that the only reason he was not being offered a mortgage of a longer term was his age. If the Complainant had an issue with the fact that he was not being offered a mortgage of a longer time and he felt that this was a discriminatory action, he should have taken a complaint at that time. He did not, and instead took out the mortgage on the terms offered and raised no issue with those terms until shortly before a scheduled Circuit Court hearing regarding the repossession of his residence, in July 2023.

No explanation has been offered by the Complainant for this 17-year delay. The decision which is impugned is the decision by BOSI to offer the Complainant a mortgage term up to the age of 65. The Complainant has stated in his ES1 form dated 19 September 2023 that:

“In October 2005 I took out a c.€370,000 mortgage with Bank of Scotland in Ireland, (BOSI), on my primary residence at [address].

It was an interest only loan for a term of 13 years with the full sum being payable at the expiry of the term.

When I queried why I was not being offered a longer term the BOSI official informed that they did not extend terms on primary residences beyond the 65th birthday of the customer. The official was very clear: the sole reason for the relatively short 13 year term was “my age””.

The Complainant proffers absolutely no explanation as to why it took him so long to advance his concerns in relation to the alleged discriminatory terms of the mortgage, if such discrimination was apparent to him when the mortgage was entered into in 2005.

Indeed, it appears from the Complainant’s own account of matters that he was satisfied with the terms as he states that he intended to “repay the loan from the proceeds of various investment properties” that he then had. Due to the property crash in 2008-2010 all but one of those properties were placed in receivership, and even then, the Complainant did not raise an issue of discrimination. In fact, as his circumstances improved in 2022, he again began to repay capital and interest on what he describes as a “voluntary basis”. Furthermore, it is clear from correspondence from the Complainant dated 16 January 2024, that he was aware of statutory time limits as he specifically draws attention to the relevant statutory timeframes for making such complaints:

“By referring only to my letter of 14th November they implicitly denied that my Complaint had been lodged within the two-month deadline”, and

“Finally they did not inform me of my right to appeal to the WRC or of the 6-month deadline involved”.

If there were any substance to the type of claim now advanced (which is denied), there would be a sensible factual basis for this delay (which there is not).

Without prejudice to the foregoing, even if the date of the balloon payment for the mortgage at its cessation, 5 October 2019, was the relevant date for the purposes of the Complainant’s claim under the ESA, it is submitted that the Complainant’s first ES1 form was still sent almost four years outside the two month timeframe provided for under section 21 of the ESA, as well as being significantly outside all of the above referenced time periods, with the Complainant not having demonstrated any reasonable cause for this delay. Further, the Complainant was aware as of 5 August 2022 (when notified by the Respondent’s solicitors, AMOSS), that repossession proceedings would commence if he failed to discharge the outstanding balance on the mortgage, engage with the Respondent regarding a solution to discharge the mortgage or enter restructuring repayment terms.

The Complainant’s first complaint was lodged with the WRC on 16 January 2024, well outside of the 6-month period as per section 21(6) of the ESA. This complaint was filed years after the expiry of the mortgage on 5 October 2019, and after he received formal notice on 5 August 2022 that repossession proceedings would be commenced if he failed to discharge the outstanding balance on the mortgage. The Complainant has not provided any explanation for his failure to raise an issue of discrimination at this time.

The Complainant did not raise any allegation of discrimination on grounds of age with the Respondent during the term of the mortgage, nor indeed for several years after the expiry thereof, during which time the Respondent had been making extensive efforts to engage with the Complainant about restructuring his repayment terms.

In fact, the Complainant only raised his concerns after the Respondent had commenced repossession proceedings in the Circuit Court, in circumstances where alternative repayment arrangements could not be considered or arranged due to the Complainant’s non-engagement with the Respondent. It is submitted that the within complaints have clearly been submitted as an abuse of process to interfere with the repossession proceedings, and that had the Complainant genuinely had concerns of discrimination, he would have raised such concerns with the Respondent prior to July 2023.

By failing to do so, the Complainant denied the Respondent any real opportunity to address the concerns during the life of the mortgage, something it may have been in a position to do had the Complainant engaged with it appropriately. In this regard, the Respondent notes that it is willing to explore alternatives to repossession proceedings, including but not limited to, extending agreed repayment timeframes, and that repossession proceedings are only ever instituted as a last resort.

On the basis of the foregoing, it is respectfully submitted:

a)      any discrimination claim arising in relation to the initial term of the mortgage should be rejected as the notification provisions stipulated in section 21 of the ESA have not been complied with;

b)     the prohibited conduct alleged is outside the timeframes stipulated in section 21(6), and as such, any discrimination claim is statute barred; and

c)      the Complainant has failed to put forward any cogent reason which would amount to reasonable cause for these significant delays. Without prejudice to that, even if the Adjudication Officer were to accept that he had reasonable cause for the delays, there is no jurisdiction to extend the time limit beyond 12 months from the date of the alleged discrimination and therefore the complaints are out of time.

No prima facie case

It is respectfully submitted that the Complainant has failed to raise a prima facie case of discrimination.

Section 38A of the Act sets out the burden of proof in equal status complaints. In accordance with section 38A of the Act, the initial burden of proof rests with the Complainant to establish facts from which it may be presumed that there has been discrimination. This requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

In order to establish a valid prima facie case, the Complainant must establish the facts from which less favourable treatment could be inferred. In Atilla Inanc v Compass Catering Services Ireland Limited, the WRC stated that:

“The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.”

The Complainant has not provided any evidence of differential treatment on grounds of age. No evidence has been provided to infer that the enforcement of the mortgage was on grounds of age or that the Complainant was treated any differently than someone of a different age in a similar position.

It is submitted that the appropriate comparator for the Complainant is someone of a different age who was similarly in default of the terms of their mortgage and similarly refusing to engage with the Respondent with a view to identifying alternative options for repayment.

The enforcement steps taken by the Respondent were triggered solely by the fact that the Complainant had defaulted on his mortgage and failed to engage with the Respondent in this regard; they were not motivated by the Complainant’s age. The Respondent would have taken similar enforcement action against any other person, regardless of their age, who was similarly in default of agreed mortgage terms and had failed or refused to engage with the Respondent in a similar manner.

The Respondent has, in fact, taken similar actions against individuals of different ages who default on the terms of their mortgage.

The Respondent’s actions were consistent with the Respondent’s MARP, which is in accordance with the Code of Conduct, as well as being in compliance with all appropriate CBI guidelines, which are applied uniformly across its loan book, and were not influenced by the Complainant’s age, but rather the fact of his default and non-engagement.

Legal submissions

No discrimination

The Respondent cited the relevant provisions of the Acts (sections 3 and 38A).

In order to prove discrimination on grounds of age, the Complainant must establish the following for the purposes of the ESA: (1) he is covered by a discriminatory ground - age; (2) specific treatment alleged by the Complainant actually occurred; and (3) evidence that the treatment received by the Complainant was less favourable that the treatment someone not covered by the discriminatory ground would have received in similar circumstances.

The Respondent submits that it is accepted the Complainant is covered by the ground of age but it is well established that merely being covered by one of the protected grounds is not evidence of discrimination. However (2) and (3) are not present. There is no discrimination on grounds of age in respect of the Complainant. He has been treated equally with all mortgage holders, of any age, whose mortgages are in arrears.

The Respondent made extensive efforts to engage with the Complainant in this regard, and had the Complainant engaged with the Respondent, it would have been in a position to explore a restructuring option with the Complainant, which would have included consideration of extending the repayment period for the period of time requested by the Complainant.

The Respondent is in a position, in appropriate cases, to extend the timeframe for repayment until a person reaches 77, and indeed beyond this age, or for such other periods as may be appropriate. However, the Respondent is legally obliged, before agreeing to any repayment extensions, to conduct a credit risk assessment for such repayment arrangements, in accordance with the Code of Conduct (which is underpinned by legislation - Section 117 of the Central Bank Act 1989, as amended). The Respondent was unable to undertake any such legally required credit assessment solely as a consequence of the Complainant’s refusal to engage with the Respondent in this regard, and a refusal to complete the I&E form and/or to provide the relevant information requested therein.

No harassment

The Respondent cited the relevant parts of subsection 1 and 5 of section 11 of the Act.

Insofar as the Complainant alleges harassment on grounds of age, he must demonstrate that any harassment (as defined in the Act), as alleged, or at all, was on any of the prohibited grounds - in this case, age. In so far as the Complainant alleges that the manner in which the Respondent has sought to engage with him constitutes harassment (which is denied), it is denied that any such engagement was on grounds of his age.

Rather, the Respondent engaged with the Complainant, as it would with any mortgage holder in arrears at the end of the mortgage term - including writing to the Complainant, phoning him, asking him to provide details of his ability to discharge/extend the mortgage by way of an I&E form (to which there was no response) and on occasion calling to the mortgaged property.

Absence of response to ES1 forms

Since 19 September 2023, the Complainant has sent 5 ES1 forms to the Respondent as follows: 19 September 2023; 4 June 2024; 9 July 2024; 4 November 2024; 18 March 2025.

The Respondent considered the first claim of the Complainant of 19 September 2023 and by letter dated 13 December 2023 responded to same.

“Firstly, in relation to your point that in Bank of Scotland not offering you an IO mortgage beyond the age of 65 is ageist and discriminatory and contrary to the Equal Status Act 2000 as amended. Please note that Pepper is unable to comment on matters that occurred prior to your account transferring from Bank of Scotland to Pepper. You will need to take said matter up with Bank of Scotland directly.

By way of background, on 05 October 2019 your IO mortgage account expired at which time the full outstanding balance became due and owing. Correspondence was issued to you dated 02 October 2019 to determine your plan to clear the outstanding balance on your mortgage account and said letter also offered you a Temporary Alternative Repayment Arrangement (“TARA”) which consisted of 12 Interest only monthly repayments of €386.23 commencing on 20 October 2019 and ending on 20 September 2020 with the final payment due on the new mortgage term end date of 20 October 2020, in the amount of €373,774.46. Said letter requested that you confirm your acceptance of same. Between 09 October 2019 and 20 May 2020 calls were placed to you to return your acceptance of the TARA offer to Pepper; however, these calls were successful (Sic).

Between 25 November 2020 and 18 January 2022 several calls were placed to you regarding your plan to clear the arrears balance on your mortgage account; however, these calls were unsuccessful. We received correspondence from you on 18 January 2022 in which you advised that you will be clearing the full outstanding balance and you requested to be put back into the Mortgage Arrears Resolution Process (“MARP”). A call was placed to you on 27 January 2022 to advise you that required an Income & Expenditure (“I&E”) to be completed in order to assess your account for an Interim Repayment Plan (“IRP”); however, this call was unsuccessful. Further calls were placed to you between 02 February 2022 and 23 May 2022 regarding same; however, these calls were also unsuccessful.

Correspondence was received from you on 08 June 2022 in which you made a Full and Final Settlement (“FAFS”) offer to Pepper of €370,000.00. You stated this payment would be made in 3 stages, €110,00.00 from your pension, €100,00.00 from the sale of an apartment and €160,00.00 by refinancing and a family gift. Between 22 June 2022 and 31 May 2023 several calls were placed to you to advise you that we required you to complete and return and I&E form in order for Pepper to review your proposal which was received into our offices on 08 June 2022 and we also note that you are now requesting IO payments to be extended from 13 years to 25 years.

We also note in your letter received on 15 November 2023, you requested legal proceedings to cease. We can confirm that legal proceedings will not be ceased as at the time of writing this letter the current arrears balance on your mortgage account is €339,352.40. You currently do not have an ARA in place and furthermore, you are not engaging with Pepper in a meaningful way. As outlined above, in order for Pepper to review any proposal we require you to complete and return and I&E form to our offices. We are sorry if this does not meet with your expectations.”

Insofar as the Complainant argues that the Respondent did not respond to the ES1 forms furnished, it has responded to the Complainant’s allegations of age discrimination and harassment. On 30 May 2022, it also responded to queries raised by the Complainant regarding the composition of the appeals panel and the appeals process regarding the upholding of the “non-co-operation” part of the Complainant. Many of these queries are repeated in the five forms furnished.

The Respondent quoted section 26 of the Act which provides as follows:

26.—If, in the course of an investigation under section 25, it appears to the Director of the Workplace Relations Commission—

(a)   that the respondent did not reply to a notification under section 21(2)(a) or to any question asked by the complainant under section 21(2)(b),

(b)   that the information supplied by the respondent in response to the notification or any such question was false or misleading, or

(c)    that the information supplied in response to any such question was not such as would assist the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission, the Director of the Workplace Relations Commission may draw such inferences, if any, as seem appropriate from the failure to reply or, as the case may be, the supply of information as mentioned in paragraph (b) or (c).

The Complainant was also in a position to refer his claims to the WRC and has made four such claims. He therefore did not require a response to the ES2 form (including, in particular, as he is engaged in Circuit Court repossession proceedings as a defendant), in order to do so. In addition, the queries raised are voluminous and he has failed to provide a basis for their response being relevant to his claims of age discrimination and harassment on grounds of age.

The Respondent submits that it is within its purview to offer extensions to customers to assist them in discharging existing loans, and that they regularly do so in appropriate cases, as it is to the benefit of both the Respondent, and a mortgage holder in arrears, to attempt to reach a mutually agreed resolution and avoid repossession proceedings. In addition, the Respondent is legally required to comply with the relevant CBI guidelines on dealing with mortgage holders in arrears.

In this case, the Respondent offered the Complainant numerous opportunities to communicate with the Respondent or put in place alternative repayment plans, but he either failed to engage, or failed to engage as required by the Respondent in line with its relevant policies, as are informed or dictated by CBI guidelines.

Conclusion

Without prejudice to the preliminary concerns raised, the Respondent submits that that Complainant’s complaints are without merit. There is no evidence of discriminatory treatment and no causal link between the enforcement actions taken against the Complainant and his age. The actions taken by the Respondent were lawful, necessary, appropriate and non-discriminatory. Any adverse consequences experienced by the Complainant were solely the result of the Complainant’s default and his refusal to engage.

At the adjudication hearing, the Respondent reiterated its position regarding the preliminary matter of time limits. It was noted that the Complainant’s claims related to a 2005 mortgage. It was asserted that the Complainant could not argue that the alleged discrimination is ongoing. He was offered and accepted an offer of a mortgage, he signed a 13-year loan agreement in 2005.

The Complainant named no comparator. When he defaulted on his mortgage, he was treated exactly the same as any other person in the circumstances. Regarding the alleged harassment by way of the court repossession proceedings, the Respondent submits that the same process was applied to the Complainant as to any other person that defaulted on a mortgage.

The Respondent submitted that the mortgage contract was not illegal. While certain issues are considered in the mortgage process, e.g., age, this does not make the contract illegal. The Complainant was offered and accepted a 13-year mortgage. Whether the mortgage term is 13 or 25 years, the Complainant was offered and accepted the offer, there is no evidence that there was anything illegal about the contract. The Respondent suggested that the Complainant is conflating illegality of contract, contractual matters and discrimination. If the Complainant thought that the offer was discriminatory, he could have taken a challenge at that time.

The Respondent submitted that the Complainant said he did not know that he was entitled to a longer mortgage. The Respondent asserted that ignorance of law is not an excuse and, furthermore, it is incorrect to say that the Complainant had an entitlement to a longer mortgage.

The Respondent objected to the Complainant’s assertion that he was refused a 25-year mortgage and told by a person in BOIS that he was too old. The Respondent maintained that the evidence should be regarded as hearsay.

Regarding the substantive matter, the Respondent submitted that when a person defaults on a mortgage, regardless of age or the term of the mortgage, the process is the same. The Complainant was treated exactly the same as anyone else would be.

The Respondent submitted that the Complainant’s questions and requests included in his correspondence were outrageous, inappropriate, and had nothing to do with his equal status claim.

Regarding the Complainant’s request for compensation, the Respondent submitted that the Complainant still owes over 300k. The reason the Respondent proceeded with the repossession was because of the Complainant’s failure to engage. 

The Complainant referred this claim to the Director General of the WRC on 7 May 2025 alleging that the Respondent discriminated against him on the grounds of his age when issuing proceedings seeking repossession of his property. The Complainant confirmed at the adjudication hearing that this claim relates to the Circuit Court proceedings on 30 January 2025. The Complainant also alleged that he was harassed by the Respondent on the grounds of his age by its attempts to enforce a contract that, in the Complainant’s view, was illegal.

The Respondent rejects the claim.

The relevant law

The Equal Status Act, in relevant parts provides as follows.

Section 3 Discrimination (general).

3(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),(in this Act referred to as the ‘discriminatory grounds’) which—

(i)     exists,

(ii)    existed but no longer exists,

(iii)  may exist in the future, or

(iv)  is imputed to the person concerned,

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

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

Section 5 Disposal of goods and provision of services provides as follows.

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.

The Act in section 2 provides the following definition of “service”

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a)   access to and the use of any place,

(b)   facilities for—

a.                banking, insurance, grants, loans, credit or financing,

b.                entertainment, recreation or refreshment,

c.                cultural activities, or

d.                transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

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

Sexual and other harassment.

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

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

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

(c)    is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7) at which the person is in a position of authority.

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.

(4) A person’s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(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.

Burden of proof

38A(1) 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 test for what constitutes a presumption of discrimination has been set out in several decisions of the Labour Court, in particular, in Southern Health Board v Teresa Mitchell [2001] E.L.R. 201 and Valpeters v Melbury Developments Limited [2010] 21 E.L.R. 64. In the latter case, in considering a similar burden of proof under the Employment Equality Acts, the Labour Court stated that:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

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 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.”

Section 38A(1) requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

Comparator

The Complainant must show that he 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.

Time limits

The Respondent raised a preliminary matter of the prescribed time limits. The Respondent asserts that the Complainant’s claim is centred around a mortgage he secured from Bank of Scotland (Ireland) (‘BOSI’) on 10 October 2005. As the ES1 form relevant to this claim was dated 18 March 2025, the Respondent asserts that the complaint is out of time.

Section 21 of the ESA provides as follows.

21.—

(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) If the grounds for such a claim as is referred to in subsection (1) arise—

(a)   on the gender ground, or

(b)   in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(2) Before seeking redress under this section the complainant—

(a)   shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b)   may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3)

(a)   On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

(b)   In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6)

(a)   Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b)   On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The Equal Status Act 2000, as amended, requires a complainant to comply with two separate time limits. The first, at section 21(2), provides that a complainant must, within two months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress. Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months, or exceptionally, may disregard the time limit requirement.

The second time limit is set out at section 21(6) of the Act, and this provides that a complaint of discrimination may not be considered by an Adjudication Officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  For reasonable cause, this time limit may be extended to 12 months. 

Notification of the Respondent ES1

Section 21(2) of the Act provides that a complainant must, within 2 months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.

I note Ms Judy Walsh, in Equal Status Acts 2000-2011 Discrimination in the Provision of Goods and Services (Blackhall Publishing, 2012) states as follows:

“The notification must be sent within two months of the alleged discriminatory event and must state the name of the allegation and the complainant’s intention to seek redress under the Acts if not satisfied by any reply received.  Both of these criteria are essential.”

I further note the Equality Tribunal in O’Brien and McCarthy v Ruairi’s Bar, Tralee DEC-S2007-039 explained the purpose of the notification requirement as follows:

“The purpose of this notification is twofold.  Firstly, it is designed to alert the respondent at an early stage to the nature of the allegation and the fact that a complaint is being considered against them and, secondly, it affords the respondent the opportunity of communicating directly with the complainant with a view to resolving the issue between themselves without recourse to the Equality Tribunal.” 

The Complainant notified the Respondent of his allegations by an ES1 form dated 18 March 2025. Therefore, the notification can only relate to any alleged incidents of discrimination that occurred in the period from 19 January 2025 to 18 March 2025.

At the adjudication hearing the matter of time limits was discussed in detail. The Complainant agreed that the Act provides for two months’ time limit. He did not apply for an extension of time limit as he asserted that the prohibited conduct is ongoing due to the Respondents’ attempts to enforce an illegal contract.  

Submission of the complaint to the WRC

The Complainant referred his claim to the Director General of the WRC on 7 May 2025. In accordance with the provisions of section 21(6)(b) of the Act, the alleged discriminatory treatment to which the complaint form relates is required to have occurred during the preceding 6 months – i.e. on or from 8 November 2024 to 7 May 2025. For reasonable cause this time limit can be extended to 12 months. There was no extension sought.

Allowing for the fact that relevant case law relating to equality matters have been made by employment tribunals, decisions determined by the Labour Court are cited in equal status cases. The Labour Court in Hurley v County Cork VEC EDA 1124 said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. 

In the matter of Dunnes Stores v Breda Mulholland EDA 179 the Labour Court stated as follows.

“It is settled law that for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of the complaint.”

I will begin by examining the alleged acts of discrimination that fall within the cognisable period of six months from the referral of the case to the WRC.

The Complainant asserted that, by its attempts to enforce a contract that was illegal in the first place, the Respondent discriminated against the Complainant on the grounds of age and subjected him to harassment. The Complainant contented that the Respondent’s attempt on 30 January 2025 to repossess his property through the proceeding at the Circuit Court was discriminatory.

There was no dispute that the term of the Complainant’s mortgage expired on 5 October 2019, and the full outstanding balance of the loan became payable. Subsequently, the Respondent commenced a Mortgage Arrears Resolutions Process in accordance with the Central Bank of Ireland Code of Conduct on Mortgage Arrears. The process ultimately led to the Circuit Court proceedings.

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.

On the balance of probabilities, I am satisfied that the reason for the Respondent’s initiating the repossession proceedings was not directly attributable to the Complainant’s age. I find that there was nothing put before me to suggest that the Complainant was treated less favourably than another person who does not have the protected characteristic (a person of a different age) was, has been or would be treated in comparable circumstances. The Complainant offered no evidence to substantiate his assertion that he was treated less favourably than another person of a different age who was in default of their mortgage terms and who had failed or refused to engage with the Respondent was, has been or would be treated.

Furthermore, there was no evidence put before me from which I could reasonably conclude that the Complainant experienced unwanted conduct as defined in section 11 of the Equal Status Act on the ground of his age. Accordingly, I find that the Complainant has not succeeded in establishing a prima facie case of discrimination and/or harassment on the age ground.   

The Complainant sought a declaration from me that the contract that was offered to him in October 2005 by a financial service provider (not the Respondent), and which he accepted, was illegal. It is evident that the timing of the contract, some 20 years ago, falls clearly outside the time limits prescribed by the Act.

I declare this complaint to be not well founded.

Time limit- no prima facie case-