Case Number: DEC-S2016-016. Workplace Relations Commission

CourtWorkplace Relations Commission
Date03 March 2016
Docket NumberDEC-S2016-016
PartiesDavid Cooke and Michelle Strauss -V- Bank of Ireland
EQUAL STATUS ACTS DECISION NO. DEC-S2016-016 PARTIES David Cooke and Michelle Strauss AND Bank of Ireland (Represented by Elizabeth Donovan, BL) File reference: ET-155075-ES-15 & ET-155394-ES-15) Date of issue: 3 March 2016 Introduction:

1.1 The complaints relate to claims of discrimination on grounds of race referred by the complainants to the Equality Tribunal on the 9th September 2015. The respondent is a retail bank, engaged in the business of advancing mortgages.

1.2 On the 14th December 2015, in accordance with his powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. In accordance with section 25(1) and as part of my investigation I proceeded to a hearing on the 17th December 2015. The complainants represented themselves. The respondent was represented by counsel, instructed by in-house solicitors and three witnesses attended to give evidence.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Summary of the complainant’s case

2.1 The complainants outline that the respondent bank discriminated against them on grounds of race, and more specifically nationality, in how it treated their applications for a mortgage. They indicate that they were given less favourable treatment when the respondent declined to take account of rental income they obtained from a dwelling let in the United Kingdom in assessing their eligibility for a mortgage. As well as the complaint form, the complainants made four submissions prior to the hearing and also made additional submissions that followed the hearing, including in reply to a post-hearing submission of the respondent.

2.2 The complainants outlined that during the course of the 2014, they made an enquiry to a named online platform of the respondent, later making an application online. Separately, they also later sought to make an application to the respondent via a branch and did not then know of the relationship between the respondent and the named online platform. On the 19th January 2015, one complainant had a brief telephone conversation with a representative of the respondent, who indicated that their mortgage application could not be progressed as they had not been resident in Ireland for 12 months. During this time, the complainants moved to Ireland, commencing a tenancy on the 20th March 2015.

2.3 The complainants approached a retail outlet of the respondent and liaised with an adviser. They said that he was very helpful. Once they submitted their mortgage application, the mortgage adviser informed them that they did not have sufficient net disposal income. This arose because the rental income from the UK property could not be taken into account in assessing affordability. In an email on the 11th February 2015, the mortgage adviser indicated that it would be helpful if they had a banking history of six months with the respondent; the complainants said that this was a “back-door” residency requirement. The complainants lodged a formal complaint with the respondent and received an email dated the 4th March 2015 in reply. This stated the following criteria were factored into the decision to decline the application: they were new to the Bank of Ireland Group, one complainant was not then working, the property in the UK had a mortgage and the respondent could not accept UK rental income and lack of affordability due to this. The complainants said that the same reasons were provided when they later formally complained of this decision to the respondent.

2.4 In legal submissions, the complainants outlined that the respondent had a policy that mortgage applicants must be existing customers. While the proper assessment of credit was a legitimate aim, the measure adopted must be both appropriate and necessary. The respondent’s policy regarding applicants being existing customers went beyond what was appropriate and necessary to achieve this aim. In respect of the assessment of UK rental income, the complainants outlined that the respondent should have asked for the rental accounts for the last six months, in the same way as they would for an Irish rental. This would have given the respondent the necessary information to assess credit risk. The complainants stated that the respondent could only avail of a defence provided by section 5(2)(d) of the Acts if they provided credit information that demonstrated that they were entitled to rely on the defence. They said that they were required by Equality Tribunal procedures to submit separate complaints and that the matter related to mortgage applications made in both their names. This was a complaint pursued under both section 5 and 6 of the Equal Status Acts and that they were entitled to pursue EU Treaty rights before the Equality Tribunal.

2.5 In cross-examination, one complainant said that he had dealt exclusively with the respondent and its online platform and had opened a current account with the respondent. It was put to this complainant that the bank official who had telephoned him after his application to the online platform had raised the ongoing reliance on an overdraft. He said that this was a structured overdraft, like a credit card, and could not remember whether she had raised this issue. It was put to the complainant that this bank official suggested maintaining an account for 12 months in order to show the capacity not to rely on an overdraft. It was put to the complainant that the email of the 11th February 2015 refers to the repayment capacity as marginal and that six months would make a difference to his position. It was put to him that all their outgoings were from one salary; that they were in a state of flux on moving to Ireland and that this was not a matter of going from “Nat West to Lloyds”. The complainant said that another mortgage provider had been willing to approve their mortgage, taking account of the UK rental income.

2.6 In cross-examination of the second complainant, it was put to her that the respondent treated her favourably and with sympathy. The complainant said that the...

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