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Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2008- 116
Martin King
-v-
The Voluntary Health Insurance Board
(represented by Ms. Cliona Kimber B.L. on the instructions of McCann Fitzgerald Solicitors)
File Ref: ES/2005/0944
Date of Issue: 11th December, 2008
Case Summary
Keywords
Equal Status Acts, 2000-2004 - Section 3(1)(a) - Direct discrimination, Section 3(1)(a) - Gender Ground, Section 3(2)(a) - Disposal of Goods and Services, Section 5(1)
Dispute
This dispute concerns a complaint by Mr. Martin King that he was discriminated against by the respondent on the Gender ground in terms of Sections 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004.
Complainant’s case
The complainant claims that he has been subjected to discrimination by the respondent on the basis that he is obliged to pay for a benefit, namely maternity related benefits, as part of his insurance cover which he cannot possibly avail of due to his gender.
Respondent’s case
The respondent submitted that it is statutorily obliged to include maternity benefit in every health insurance contract that it offers, and that it is not legally permitted to charge a lower premium to a specific gender for a health insurance contract. The respondent submitted that the gender neutral nature of its policies is required by legislation and it therefore submits that it is legally required to offer a health insurance contract, which must include maternity cover, at the same rate to both men and women. The respondent also relied upon the exemptions that are provided for in sections 5(2)(d)(i)(II) and 14(1)(b) in its defence in this case. The respondent also raised a jurisdictional issue that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts.
Decision
The Equality Officer found that the complaint had been referred to the Tribunal within six months of the most recent occurrence of the alleged prohibited conduct, and accordingly, that the complaint is admissible under Section 21(6) of the Equal Status Acts. In relation to the substantive issue, the Equality Officer found that the specific treatment complained of by the complainant in the present case was required by an enactment and therefore, falls within the exemption provided for in Section 14(1)(a)(i) of the Equal Status Acts. The Equality Officer, therefore, found that the complainant has failed to establish a prima facie case of discrimination on the Gender ground in terms of Sections 3(1) and 3(2)(a) of the Equal Status Acts.
Equal Status Acts, 2000 to 2008
Equality Officer Decision DEC-S2008-116
Mr. Martin King
-v-
The Voluntary Health Insurance Board
(represented by Ms. Cliona Kimber B.L. on the instructions
of McCann Fitzgerald Solicitors)
Keywords
Equal Status Acts, 2000-2004 - Section 3(1)(a) - Direct discrimination, Section 3(1)(a) - Gender Ground, Section 3(2)(a) – Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2004
This complaint was referred to the Director of the Equality Tribunal on 2nd December, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008. The hearing of the case took place on 4th November, 2008.
1. Dispute
1.1 This dispute concerns a complaint by the complainant, Mr. Martin King, that he was discriminated against by the respondent on the Gender ground in terms of Sections 3(1)(a) and 3(2)(a) of the Equal Status Acts, 2000 to 2004 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004 on the basis that he was being charged by the respondent for an insured benefit, namely maternity related benefits, as part of his health insurance cover which he claims that he cannot avail of due to his gender.
2. Summary of the Complainant’s Case
2.1 The complainant has been a member of the Voluntary Health Insurance since the early 1970’s and was a subscriber to Plan D cover at the time of the alleged incident of discrimination on 25 October, 2005. The complainant contacted the respondent by telephone on this date to obtain certain information regarding his health insurance cover and it came to his attention for the first time during the course of this telephone conversation that he was paying for maternity related benefits as part of his policy. The complainant requested to have this aspect of cover removed from his health insurance policy so that he could afford other benefits but he was informed by the respondent that he was prohibited from doing this as the maternity related benefits were a composite part of the overall insurance plan. The complainant claims that he is being discriminated against by the respondent on the basis that he is obliged to pay for a benefit, namely maternity related benefits, as part of his insurance cover which he cannot possibly avail of due to his gender.
2.2 The complainant contends that pregnancy is not a medical condition or a state of illness per se but rather it is a perfectly normal state for females choosing to have children. The complainant further contends that the making of financial provision for the costs of an illness is an insurable risk whereas pregnancy, in insurance terms, is not a risk. He submits that the respondent, by virtue of its policy payment arrangements, is requiring him as a male to make provision for females to avail of a service rather than a treatment for an illness or unhealthy condition and by doing so, it is operating a marketing stratagem (or inducement) for people of child bearing age to enter one of its health insurance plans. The complainant claims that the respondent is operating a discriminatory practice by requiring males to pay for the insurance of women who are exercising their choice to be in the natural state of pregnancy. The complainant submitted that the respondent should be prevented from applying such a levy on male subscribers in order to support the cost of what amounts to a marketing stratagem or promotional inducement.
2.3 In response to the issue that has been raised by the respondent that the complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts, the complainant stated that he initially became aware that he was being charged for maternity related benefits as part of his insurance cover when he contacted the respondent by telephone on 25th October, 2005. The complainant claims that he has never read the informational documentation in relation to his policy that the respondent claims was forwarded to him prior to the renewal of his health insurance contract and therefore, was not aware that he was required to pay for maternity related benefits as part of his cover.
3. Summary of the Respondent’s Case
3.1 The respondent totally rejects the allegation that it discriminated against the complainant on the grounds of his gender. The respondent was established by statute in 1957 and it is mandated with the making and carrying out of a scheme of voluntary health insurance for defraying the cost to subscribers of medical, surgical, hospital and other health services. The respondent provides a defined level of cover for medically necessary procedures and in doing so it offers a number of plans which offer cover varying from basic level to a more generous level of cover. The respondent submitted that it is statutorily obliged to charge the same premium per plan for males and females irrespective of their gender and therefore, once a member selects a certain plan, he or she will be charged the same premium regardless of gender. The respondent submitted that every insurance contract or plan, including Plan D to which the complainant is a subscriber, has maternity cover. The respondent accepts that the complainant, as a male cannot avail of maternity benefits, however it submitted that this Plan also covers a wide range of medical illnesses peculiar to males only, for example, prostate cancer and procedures of the male genital tract. The respondent submits that to single out one aspect of cover is entirely unrepresentative of the likelihood or level of claim made on the insurance policy and when the plan is looked at as a whole it is clear, therefore, that what the complainant may lose on the one hand, he gains on the other, and vice versa. The respondent submits, therefore, that there is no less favourable treatment of a male in the situation of the complainant in the overall cover provided by Plan B.
3.2 In a written submission and at the hearing of the complaint, the following points were made on behalf of the respondent:
· The respondent submits that if there is any difference in treatment, it is required by an enactment, namely the Health Insurance Acts, 1994 to 2003 and the Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996, and thus falls within the exemption that is provided for in section 14(1)(a)(i) of the Equal Status Acts, 2000 to 2008. The respondent submits that it is abundantly clear that the combined effect of the aforementioned legislation requires the respondent to include maternity benefit in every health insurance contract that it offers and that the respondent is not legally permitted to charge a lower premium to a man for a health insurance contract. The respondent submits that it is therefore legally required to offer a health insurance contract, which must include cover for maternity benefit, at the same price to men and women.
· The respondent submitted that if there is any difference in treatment, it is effected by reference to relevant commercial or underwriting factors and thus falls within the exemption in section 5(2)(d)(i)(II) of the Equal Status Acts, 2000 to 2008. The respondent submits that to operate a commercially viable insurance system which can offer a minimum level of private medical insurance at an affordable price and on similar quality conditions, underwriting and commercial factors require, inter alia, that good maternity cover be provided, and that not only is this entirely reasonable, but also provides a positive social good. The respondent submits that the solidarity or non-discrimination between males and females in the insurance contracts, which is part of open enrolment (i.e. the legal obligation of Private Medical Insurance insurers to offer a health insurance contract to any person requesting a contract), is not only entirely reasonable but is also acknowledged by the European Court of First Instance in the BUPA case[1], as promoting the social good of affordable health insurance for all. The respondent therefore submits that the gender neutral nature of the plans, even though they provide maternity cover in all plans, is permitted by the Equal Status Acts.
· The respondent submits that even if it is found that the complainant has been treated less favourably than a comparable female, that the support of maternity and birth are permitted under section 14(1)(b) of the Equal Status Acts, 2000 to 2008. The respondent submits that women as a group are disadvantaged by the social and financial cost of maternity and childbirth and therefore, the provision of maternity cover is a positive measure which promotes equality for women and caters for the special needs of women which are attendant on maternity and childbirth. The measure is also to some small extent reducing the financial burden of pregnancy and childbirth. The respondent submits that this is clearly expressly permitted in accordance with Section 14(1)(b) of the Equal Status Acts.
3.3 The respondent also raised a jurisdictional issue that the present complaint was not submitted within the six month time limit prescribed in Section 21(6) of the Equal Status Acts. The respondent submitted that the date of occurrence of the alleged incident of discrimination was the date when the complainant first subscribed to Plan D cover on 22 July, 1991. Alternatively, the respondent submitted that the very latest date on which the alleged incident could have occurred was 1 February, 2005 i.e. the renewal date of the complainant’s membership. The respondent claims that it issued informational material to the complainant prior to the renewal of his membership (on 1 February, 2005) which clearly outlined that maternity cover was included in the premium, and it therefore submits that the complainant would have been fully aware of the existence of this aspect of the cover within his plan at that juncture. The respondent submitted that, by taking either of the aforementioned dates as the date of occurrence of the alleged discrimination renders the complaint outside of the six month time-limit and therefore, the complaint should be deemed inadmissible.
4. Conclusions of the Equality Officer regarding the issue of Time-Limits
4.1 The respondent has submitted that the present complaint was not submitted within the six month time limit as prescribed in Section 21(6) of the Equal Status Acts, 2000 to 2004, and it therefore submits that the complaint should be deemed inadmissible. Section 21 of the Equal Status Acts makes provision for the time limits to which a complainant is obliged to adhere before a complaint can be deemed admissible, including time limits for the notification and referral of complaints which date respectively:
Section 21(2)– “2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months of the last such occurrence”, and
Section 21(6)- “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”.
The provisions of the Acts clearly envisage a single act of discrimination or a chain of two or more similar acts of discrimination. In the present case, I note that the complainant was a subscriber to Plan D cover (which included maternity benefits) since 22 July, 1991 and his contract for health insurance was renewed on an annual basis on 1 February of each year (with the last such renewal of the contract prior to the referral of the present complaint being effected on 1 February, 2005). The present complaint was notified to the respondent on 25 October, 2005 and it was referred by the complainant to the Equality Tribunal on 2 December, 2005. Therefore, the question that I must decide in order to determine the admissibility, or otherwise, of the complaint in the present case, is whether the inclusion of the alleged discriminatory term in the health insurance contact to which the complainant subscribed i.e. the inclusion of maternity related benefits, constitutes a once-off or single act of discrimination or did it continue for the duration of the contract of insurance between the respective parties.
4.2 In considering whether the inclusion of an alleged discriminatory term in a contract of insurance, constitutes a single act or an ongoing discriminatory act or policy, I have taken note of the decision of the House of Lords in Barclays Bank –v- Kapur[2]. In this case the plaintiffs were East African Asians who had moved to Britain in the 1970s after being effectively expelled from East Africa. In East Africa they had worked with banks related to Barclays, and on their move to the UK they took up employment with Barclays there. The bank admitted them to its occupational pension scheme, but it explicitly said that it would not credit them for the years already served with its related banks in Africa. It did, however, credit employees of European origin who had joined it about the same time with their previous service in different banks. In 1987, the plaintiffs filed a race discrimination claim with an industrial tribunal. The bank argued that they were time-barred, because the key decision not to credit was made some 15 years before the claim. (The contract of employment had also been made before the Race Relations Act, 1976 came into force). The House of Lords (per Lord Griffiths) accepted that the plaintiffs could not rely on the provision dealing with inclusion of an unlawful term in a contract, because it [implicitly] applied only to contracts coming into force after the 1976 Act. However, it held that the decision not to credit them should be seen as “an act extending over a period”, and that accordingly, it continued throughout their employment. I am satisfied that this case, albeit not a binding precedent, is of persuasive value in terms of my decision on this issue in the present case, and that it supports the proposition that a discriminatory term which was not unlawful at the time it was made may, nonetheless, also constitute a continuing policy and be unlawful on that basis.
4.3 I have also taken into consideration the decision of the Equality Officer in the case of Green –v- Quinn Direct[3] in which the complainant claimed that his contract for motor insurance with the respondent discriminated against him on the grounds of his age. The respondent objected on the basis that the contract was made in July, 2000 when the Equal Status Act was not yet in force, however the complainant argued that the contract represented ongoing discrimination as it continued in force for a year. The Equality Officer decided in this case that “the alleged act of discrimination was not ongoing and that it was a once-off act which occurred in July, 2000, before the Equal Status Act came into operation”. However, it is important to note that this case was decided under the provisions of the Equal Status Act, 2000, which did not contain any specific provisions as to how the date of discrimination should be identified in the case of an act, contractual term, policy or provision which continued in force over a period of time.
4.4 In considering this issue further, I have taken cognisance of Section 21(11) of the Equal Status Acts, 2000 to 2004 (which was inserted by the Equality Act, 2004) and which provides:
“For the purposes of this section prohibited conduct occurs –
(a) if the act constituting it extends over a period, at the end of the period,
(b) if it arises by virtue of a provision which operates over a period, throughout the period”
I note that these provisions were inserted into the legislation by the Equality Act, 2004 which occurred subsequent to the decision of the Equality Officer in the Green case. I am of the view that the inclusion of these provisions in the Equal Status Acts have provided for greater clarity regarding the manner in which the date of discrimination should be interpreted in the case of an act, contractual term, policy or provision which continued in force over a period of time (as is the situation in the present case). Having regard to the provisions of Section 21(11), I am satisfied that the complainant was involved in an ongoing contractual relationship with the respondent at the time of the alleged incident of discrimination on 25 October, 2005 by virtue of the health insurance policy to which he was subscriber. I am of the view that the alleged discriminatory term in the complainant’s contract of insurance, i.e. the inclusion of maternity related benefits, was an ongoing term in this policy throughout the duration of the contract between the parties. I am therefore satisfied that this term should be construed as continuing throughout the duration of the contact of insurance between the complainant and respondent for the purpose of determining whether the present complaint has been referred within the applicable time limits provided for in Section 21 of the Equal Status Acts.
4.5 Having regard to the foregoing, I am satisfied that the alleged discriminatory term in the present complaint falls within the scope of Section 21(11) of the Equal Status Acts for the purpose of determining the date of the most recent occurrence of the alleged prohibited conduct i.e. 25 October, 2005. I therefore find that the present complaint has been referred to the Tribunal within six months of the most recent occurrence of the alleged prohibited conduct, and accordingly, I find that the complaint is admissible under Section 21(6) of the Equal Status Acts. I will now proceed to consider the substantive complaint that has been referred for decision in the present case.
5. Conclusions of the Equality Officer regarding the substantive issue
5.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 In the present case, the complainant claims that he has been subjected to discrimination by the respondent on the basis that he is obliged to pay for a benefit, namely maternity related benefits, as part of his insurance cover which he cannot possibly avail of due to his gender. The respondent submitted that it is statutorily obliged to include maternity benefits in every health insurance contract that it offers, and that it is not legally permitted to charge a lower premium to a specific gender for a health insurance contract. The respondent submitted that the gender neutral nature of its policies is required by the Health Insurance Acts, 1994 to 2003 and the Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996, and it therefore submits that it is legally required to offer a health insurance contract, which must include maternity cover, at the same rate to both men and women. In considering this issue, I am satisfied that the Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996 makes provision for a minimum range of benefits, including maternity benefits, which all health insurance providers are obliged to provide for its subscribers in every health insurance contract that they offer (paragraph 2 of Schedule A and items 2185-2207 of Table C.2 of Schedule C). I also note that Section 7(2)(a) of the Health Insurance Acts, 1994 to 2003 provides:
“7.-(2) Without prejudice to the generality of subsection (1), premiums payable under health
insurance contracts shall not be varied by reference to –
(a) the age, sex or sexual orientation or the suffering or prospective suffering of a person
from a chronic disease, illness or medical condition of a particular kind”
Having regard to the aforementioned legislative provisions, I am satisfied that the respondent is required to include a minimum and specific range of benefits in all of its health insurance contracts, which includes maternity related benefits, and that it is obliged in accordance with the provisions of the Health Insurance Acts to charge the same premium to all of its subscribers for these health insurance contracts regardless of their gender.
5.3 Section 14(1)(a)(i) of the Equal Status Acts, 2000 to 2008 provides that:
“14.- (1) Nothing in this Act shall be construed as prohibiting - ”
(a) the taking of any action that is required by or under -
(i) any enactment or order of a court”
Having regard to the aforementioned provisions of the Equal Status Acts, it is therefore clear that any action which is required by law cannot be deemed to be discriminatory. As I have already stated, I am satisfied that the respondent, in accordance with its obligations under the Health Insurance Acts, 1994 to 2003 and Health Insurance Act, 1994 (Minimum Benefit) Regulations, 1996, is obliged to offer a minimum range of benefits, including maternity related benefits, to all subscribers of its health insurance contracts and furthermore, that it is legally obliged to charge the same premium for these contracts irrespective of the specific gender of the subscriber. I therefore find that the specific treatment complained of by the complainant in the present case is required by the aforementioned legislative provisions. Accordingly, as the respondent was complying with an action that was required by an enactment, I find that it’s actions cannot be deemed to be discriminatory in the present case.
5.4 In the circumstances, it is not necessary for me to consider the other possible exemptions advanced by the respondent in this case.
6. Decision
6.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of Sections 3(1) and 3(2)(a) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
11th December, 2008