Case Number: ADJ-00000043. Workplace Relations Commission

• Docket Number: ADJ-00000043
• Date: 19 October 2016
• Court: Workplace Relations Commission
• Parties: A Complainant V An Insurance Company

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000043

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-00000072-001	05/10/2015

Date of Adjudication Hearing: 05/02/2016

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 5^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 that he had been seeking a policy with more favourable terms. On 26^th June 2015, he 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 from Poland, he received a quotation which was significantly higher (approximately 40% more) than when he inputted the same details, but instead indicated that he had a full Irish driving licence. A copy of the two applications were furnished, demonstrating the pricing differential between the two quotations. Solicitors for the Complainant sent a notification dated 4^th August 2015 under Section 21 of the Equal Status Acts to the Respondent and lodged this complaint 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 between the two quotations 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, it was submitted that as Polish licence holders are more likely to be of Polish nationality, the practice was indirectly discriminatory 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 in order to avail of the lower quotation. It was further submitted 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 contending that this was purely a hypothetical complaint. He questioned him extensively as to his motivations for seeking a quotation from the Respondent when he already had a much cheaper motor insurance policy. In particular, he was asked had he considered transferring his Polish issued licence for an Irish issued licence which would have enabled him to avail of the lower quotation. He replied that he had never thought about it. He was asked why he had not engaged with the Respondent before submitting this complaint or reverted to his broker to enquire about changing his insurance policy. Initially the Complainant denied that he had sought quotations from and/or brought similar complaints against other insurance companies and after a short recess, conceded that he had and this was simply a misunderstanding. Counsel also questioned him as to the additional benefits he would have obtained under the Respondent’s insurance. It was put to him that there were no real advantages of availing of the Respondent’s insurance and despite seeking more favourable insurance, he had never in fact changed his insurance policy. Additionally, he had inputted his details as an Irish licence holder before he had inputted his details as a Polish licence holder when seeking the quotations.

Respondent’s Submission and Presentation:

At the outset, Counsel for the Respondent contended that this complaint was frivolous and vexatious in that it was purely hypothetical and the Complainant had no credibility or intention of availing of the Respondent’s motor insurance based on the fact that he already had insurance and the evidence adduced as outlined above and should be rejected on that basis. 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.

It was further submitted that the Respondent is a reputable international insurance company with a racially and nationally diverse workforce, and actively seeks foreign custom with a Polish section on its website and Polish-speaking customer representatives. It operates in a competitive market and is therefore naturally keen to offer attractive prices and also has the widest acceptance criteria.

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. Detailed operational and actuarial evidence was called on behalf of the Respondent. Firstly it was confirmed that the Respondent was unaware that the Complainant was a Polish national at the time of the alleged impugned action as its website only required specification of driving licence type and a Polish licence could be held by a person of any nationality. Secondly the price differential between the insurance quotations as complained of was not based upon race or nationality but was associated with the place of issue of the driving licence. This is based upon reliable, up-to-date underwriting and commercial data gathered from the Respondent’s policies which demonstrate that insured persons with non-Irish or UK licences had significantly greater costs per claim and represented a greater percentage of total premiums paid as claims (the ‘loss ratio’). As policies issued to persons with non-Irish or UK licences demonstrably cost the Respondent more than policies issued to Irish and UK licence holders, consequently the prices were increased and are kept under review. Supporting calculations were produced and confirmed in evidence. It was further submitted that there is also a legitimate difference in the regulatory status of Irish and UK licences as against those of other...