THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2011
Decision DEC – S2015 – 004
PARTIES
Mr A
and
An Insurance Broker
File Reference: ES/2013/0038
Date of Issue: 11th March 2015
Keywords: S. 22 dismissal – frivolous and vexatious – comparing two entirely hypothetical scenarios cannot ground a claim of discrimination.
1. Claim
1.1. The case concerns a claim by Mr A, that an Insurance Broker discriminated against him on the ground of gender contrary to Section 3(2)(a) of the Equal Status Acts 2000 to 2011, in terms sending him an email advertisement for car insurance for a female driver, with a quote which was significantly lower than for a male driver.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 19 April 2013. A submission was received from the complainant on 23 December 2013. A submission was received from the respondent on 12 February 2014. On 28 January 2015, in accordance with his powers under S. 25 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date my investigation commenced. On 23 February 2015, the Director delegated his powers pursuant to S. 22 of the Equal Status Acts to myself. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 24 February 2015. Additional evidence was requested from the respondent at the hearing of the complaint and was received on 27 February 2015. The complainant was given an opportunity to make observations on this evidence by 5 March 2015, but he did not avail of this opportunity.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that on 16 March 2013, he received an email from the respondent which advertised car insurance for a 35 year old female teacher living in the Irish midlands for €280. The complainant was angered by this, as his understanding of the promotion was that such a rate was only available to women. He states he thus felt discriminated against in his own home.
2.2. According to the complainant, his suspicions of gender-discriminatory insurance rates in the respondent business were confirmed when he logged on to the respondent’s website and obtained a quote for a customer equal in all respects to the female customer in the ad, except he was male, and was quoted €324, a full 15% more.
2.3. He contacted the respondent about this matter, and was advised that the disparity arose because he had requested a different level of cover. The complainant states that these options are not available on the website’s “quick quote” function.
2.4. The complainant states that he feels discriminated against by both the original advertising email and the website quote he subsequently obtained, and also states that he feels the respondent treated him poorly. He submits that his experience amounts to discrimination on the ground of gender. He does not specify whether he ever did obtain car insurance from the respondent. The screenshots from the respondent’s website which he enclosed in evidence show that the quote for a male driver he sought to obtain was not for himself, but for a fictional prospective male client of the respondent insurance broker.
3. Summary of the Respondent’s Written Submission
3.1. The respondent disputes that it discriminated against the complainant and maintains that the difference in the quote resulted from differences in no-claims bonus protections entered on the website by the complainant. It insists that all its motor insurance products are fully complainant with European law and are not differently priced because of a customer’s gender.
3.2. Like the complainant, the respondent does not specify whether a contract for car insurance was ever completed between the parties.
4. Conclusions of the Equality Officer
Preliminary Issue: Complaint frivolous and vexatious?
4.1. From evidence provided by the parties at the hearing of the complaint, a preliminary issue arises as to whether this complaint is frivolous and vexatious within the meaning of S. 22 of the Equal Status Acts 2000-2011.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. There was no dispute that no insurance contract was ever concluded between the parties. Furthermore, Mr A. confirmed in oral evidence that the male customer for which he obtained the quote was indeed wholly fictitious, as he did not want the respondent to come in possession of his personal data. It also must be noted that the female teacher in the advertising email was also a fictional person which the respondent had invented for advertising purposes. In other words, both the female and the male insurance customers on which the complainant bases his complaint are entirely fictional, one invented by the respondent, and the other one by the complainant.
4.5. Furthermore, the respondent submitted evidence to show that even with two fictional comparators, the motor insurance quotes for them will be the same if identical insurance options for them are selected. The respondent stated, and submitted computer systems printouts of the complainant’s fictional quotes in evidence, that the difference arose from difference in the treatment of the no-claims bonus. The complainant accepted that this might have been the case.
4.6. Even without Clarke J.s recent reminder in Christian Brothers High School Clonmel v. Mary Stokes (on behalf of John Stokes, a minor), which concerned a Supreme Court appeal under the Equal Status Acts, that “in order for an individual to have standing to mount a claim, the individual must be affected by the rule in question” (paragraph 8.5 of Clarke J.s judgement), it is a fundamental principle of law that one cannot ground a complaint of any kind on wholly fictional scenarios. Accordingly, the question arises whether the within complaint is frivolous and vexatious.
The Law
1. “Frivolous and vexatious” are legal terms of art whose meaning in law differs markedly from their use in everyday parlance. In particular, they do not imply that any complainant who has brought a complaint which is subsequently found to be frivolous and vexatious is in any way a frivolous or vexatious person, a point also emphasised by Barron J in Farley v Ireland & Ors [1997] (see below). Rather, a legal complaint is said to be frivolous when any decision made by a Court or Tribunal cannot change, or improve upon as it may be, the outcome which already exists for the parties. It may simultaneously be rated as vexatious when respondent is put to the inconvenience and expense to defend such an action regardless of its lack of possible success.
2. The meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, at page 1521] in which he stated:
‘So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘
3. In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], the Supreme Court reiterated the principles already well established. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.
4.7. In the case on hand, the complainant never even obtained a motor insurance quote from the respondent for himself, much less took out actual motor insurance through the respondent. Therefore, there is no situation pertaining to the provision of a service, in this case the selling of insurance, which could be changed or improved upon between the parties by a decision of this Tribunal. The complainant’s entire claim seems to have been based on two fictional characters, and never have remotely proceeded to a point where the spectre of less favourable treatment of the complainant arose. I am satisfied that this very much meets the legal definition of a frivolous and vexatious case.
5. Decision
5.1 Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that the within complaint is frivolous and vexatious within the meaning of S. 22 of the Equal Status Acts and the jurisprudence of the Superior Courts and dismiss is accordingly.
______________________
Stephen Bonnlander
Equality Officer
11 March 2015