Case Number: ADJ-00000040. Workplace Relations Commission

• Docket Number: ADJ-00000040
• Date: 20 October 2016
• Court: Workplace Relations Commission
• Parties: A Complainant V An Insurance Company

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000040

Complaint for Resolution:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act 2000	CA-00000068-001	05/10/2015

Date of Adjudication Hearing: 09/02/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred a complaint under Section 21 of the Equal Status Acts 2000-2015 (also referred to as ‘the Acts’) to the Workplace Relations Commission (hereinafter ‘WRC’) on 5^th October 2015, a notification having been sent to the Respondent on 4^th August 2015 and the subject-matter of this complaint arising on 26^th June 2015. This complaint is one of three identical complaints lodged on the same date by the Complainant against different Insurance Companies, referred to me by the Director General for hearing and determination pursuant to Section 25 of the Equal Status Acts. I proceeded to hearing on 9^th February 2016. I inquired into the complaint and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were legally represented with Solicitors and Counsel. In addition to the evidence adduced, oral and written submissions were received from both Parties. I indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter. As two key decisions were issued by the former Equality Tribunal shortly after this hearing in relation to similar complaints which were pertinent to the instant case, for the sake of completeness, I furnished the Parties with same and allowed a reasonable period for any additional written submissions arising. All oral and written evidence and submissions have been taken into consideration in my decision.

Complainant’s Submission and Presentation:

The Complainant gave evidence confirming that he is of Polish nationality and has been residing in Ireland since 2004. He holds an EU driving licence issued in Poland which he produced at the hearing and has a clean driving record. Although he has an existing motor insurance policy with another insurance company valid from 1^st April 2015 until 31^st March 2016 which he had not changed to date, he said he had been seeking a policy with more favourable terms. On 26^th June 2015, the Complainant applied via the Respondent’s website for a quotation for insurance on his car. When he inputted his personal and vehicle details, indicating that he had a full EU driving licence, he received a quotation which was significantly higher (approximately 60% more) than when he inputted the same details, but instead indicated that he had an full Irish driving licence. A copy of the online applications were furnished, demonstrating the pricing differential between the two quotations. Arising from same, Solicitors for the Complainant sent a notification dated 4^th August 2015 under Section 21 of the Equal Status Acts to the Respondent. By letter dated 20^th August 2015, the Respondent replied confirming its position. It also provided details of the Financial Services Ombudsman’s Bureau in the event that the Complainant was not satisfied with the response. Solicitors for the Complainant proceeded to lodge this complaint with the WRC on 5^th October 2015.

It was submitted on the Complainant’s behalf that this experience mirrors the quotations received by a number of other foreign nationals who have submitted similar claims to the WRC. As a holder of a Polish issued licence, it was contended that such a large price differential is both directly and indirectly discriminatory on the ground of race pursuant to Sections 3 and 5 of the Equal Status Acts in relation to the provision of a service comprising of motor insurance. In particular, as a non-Irish licence holder, the practice was primarily indirectly discriminatory against him as a Polish national and the price differential therefore constituted less favourable treatment than an Irish national who was more likely to hold an Irish licence. It was also discriminatory to require him to transfer over to an Irish licence. Overall it was contended that such a large differential is arbitrary and cannot be defended or reasonably justified with actuarial evidence under Sections 3(1)(c) or 5(2)(d) of the Acts.

Counsel for the Respondent questioned the Complainant’s bone fides and motivations for bringing this complaint contending that it was purely hypothetical. In particular, the Complainant was asked why he had not considered transferring over to an Irish driving licence to avail of the lower quotations. He said that he was unaware of the process and had not been advised accordingly by the broker who had organised his current policy. He was asked why he was seeking a quotation online from the Respondent just two months after he had already obtained a much cheaper motor insurance policy via his broker and also why he had not sought the extra benefits at the time of taking out his existing policy. He replied that summer had been coming and he had intended travelling abroad with his family. When asked why he had not reverted to his broker for the extra benefits he purported to seek, he replied that it was easier to seek a quote online as opposed to calling his broker. Counsel further queried the additional benefits he would have obtained under the Respondent’s insurance and questioned the veracity of his contention that he had been seeking insurance with more favourable terms noting that he had never changed his insurance.

Respondent’s Submission and Presentation:

Counsel for the Respondent contended that the Complainant’s application for its insurance was not genuine and amounted to hypothetical testing in that he had sought other quotes and brought other claims and his complaint should be dismissed as being frivolous and vexatious. In this respect, reliance was placed upon the decision of the Equality Tribunal in A -v- An Insurance Broker (DEC-S2015-004) which found the complaint to be frivolous and vexatious within the meaning of Section 22 of the Equal Status Acts, in circumstances where that complainant had used fictional details to obtain an insurance quotation and had never actually taken out insurance with the respondent.

Without prejudice, it was submitted that the Complainant was not treated any differently because of his race or nationality in relation to the pricing differential and he has not established any facts constituting prima facie evidence of either direct or indirect discrimination. The Respondent is required by the Central Bank of Ireland to have a robust risk management framework in place. It is also a commercial entity and has no interest in discouraging new customers with excessive pricing.

Operational and actuarial evidence was called on behalf of the Respondent. Firstly it was unaware that the Complainant was a Polish national at the time of the alleged impugned action as its website only required specification of either a full EU or full Irish licence and did not require country of issue to be specified. Therefore, it could not have directly discriminated against him on the ground of race within the meaning of Section 3 of the Acts in relation to the provision of motor insurance.

Secondly it refuted the existence of any indirect discrimination arising from the price differential under Section 3(1)(c) of the Acts as the quotations to interested parties are neutral in relation to nationality. Directive 2006/126EC requires mutual recognition of driving licences between EU states and therefore an Irish national can hold a licence issued in any other EU state and likewise, a non-Irish national can hold an Irish issued licence. Likewise, the Complainant could apply for an Irish licence in a straightforward process. The pricing differential between the quotations is primarily determined by driving licence type based upon actuarial and statistical evidence. There are a number of different factors generally associated with the holders of Irish and UK licences and non- Irish and UK licence holders including the facility to check penalty points in relation to Irish licences, left or right-hand-sided driving experience, rules of the road and fatality experience. In assessing risk, the Respondent also relies upon GLM (Generalised Linear Modelling) and other software...