Case Number: ADJ-00000096. Workplace Relations Commission

• Docket Number: ADJ-00000096
• Date: 25 October 2016
• Court: Workplace Relations Commission
• Parties: A Complaint V An Insurance Company

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000096

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-00000071-001	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 14^th July 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 also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter. As there had not been time for the Respondent to give direct evidence at the hearing, it was proposed that this matter would be dealt with on its written submissions subject to either Party requesting a further hearing. Additionally and for the sake of completeness, 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, I furnished the Parties with same and invited submissions. Neither Party requested a further hearing but additional submissions were received from the Complainant. The Respondent applied to have the matter dismissed on the basis that Complainant had failed to engage before lodging this complaint but I deemed a more substantive consideration appropriate. All oral and written evidence and submissions presented have been taken into consideration.

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 14^th July 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 45% 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 the 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 setting out its position and offering the lower rate if the Complainant could provide a letter issued from his licence issuing authority confirming that his licence is points free along with a letter from the National Driving Licence Service (NDLS) confirming that no points have been attributed to his licence whilst driving in Ireland. It also provided details of the Financial Services Ombudsman’s Bureau as an alternative course. The Complainant contended that as the discrimination had already arisen he proceeded to lodge 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 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. 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 and/or to undertake steps such as obtaining verification that his licence was penalty points free to avail of the lower quotation. Overall, 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 when the Respondent was offering him insurance at the discounted or lower quotation offered to an Irish licence holder on verification that he had no penalty points, he was pursuing a claim for compensation. The Complainant replied that he felt that he should not be obliged to undertake steps that were not required of an Irish licence holder in order to avail of the lower rate. When asked whether he was aware that he could easily transfer over his Polish licence to an Irish licence, he replied that he was unaware of the process and in any event should not be required to do so to avail of the lower rate. He was also questioned as to why he was seeking a quotation from the Respondent when he already had a much cheaper motor insurance policy. Counsel further queried the additional benefits he thought he would have obtained under the Respondent’s insurance and the veracity of his contention that he had been seeking insurance with more favourable terms.

Respondent’s Submission and Presentation:

At the outset, Counsel for the Respondent contended that this complaint should be dismissed as being frivolous and vexatious as the Complainant had submitted it without responding to its offer of the lower quotation if he could verify that his licence was penalty points free. 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. Firstly 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 either a full EU or full Irish licence and did not require country of issue. 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 differentials under Section 3(1)(c) of the Acts as the quotations to interested parties are neutral in relation to nationality. The discounted price applies to holders of Irish licences issued by the National Driving Licence Service (NDLS) without penalty points as the Respondent only has access to the penalty point records for such licences via a Road Safety Initiative (known as the ‘hub’). The Respondent is unable to verify the penalty points record...