EQUAL STATUS ACTS
DECISION NO. DEC-S2016-009
PARTIES
Mr. DZ and Mr. TP
AND
An Insurance Company
File reference: ES/2014/0097 & 0098
Date of issue: 22nd February 2016
HEADNOTES: Equal Status Acts – Race – provision of service
1. Dispute
This dispute concerns a claim by Mr. DZ and Mr.TP that they were discriminated against by an Insurance Company, IC, on the grounds of racial origin contrary to section 5 of the Equal Status Acts.
1.2 The complainants referred their claim against the Insurance Company to the Director of the Equality Tribunal under the Equal Status Acts on 29th May 2014. On 5th November 2015 in accordance with section 25 of the Equal Status Act 2000 to 2004, the Director General General of the Workplace Relations Commission delegated the case to me, Michael McEntee, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General on which date the investigation under Section 25 commenced. Submissions were received from both sides and as part of my investigation I proceeded to a hearing on the 10th November 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 Complainant’s submission
2.1 On 10th March 2014 the Complainants went to the Branch office of IC to alter some motor vehicle details. They were served by Mr.P and in the course of the conversation they alleged that Mr. P asked some inappropriate questions in relation to who was driving the motor vehicle and from when. They became upset, cancelled their Insurance Policy and left the Office.
Later in the day they returned to change their mind, renew their policy, and were served by another IC employee Mr. X.
On the 25th March 2014 the Complainants returned to the IC Office. Mr.P. did not serve them on this occasion – he retired to the back office when he should have attended to them according to their place in the queue. They asked Mr. P why he was not serving them and he directed them to another IC staff member. He confirmed verbally that he was not serving them and he ignored them thereafter.
The Complainants felt upset, embarrassed and discriminated against by the public actions of Mr.P.
3: Respondents Submission
3:1 The basic facts were as stated. Mr. DZ and Mr.TP did enter the Regional Office to renew/alter details on a motor insurance policy on the 10th March 2014. Mr.P. had served them and considerable inappropriate language was used by the Complainant, Mr. TP, in the hearing of Mr.P.
Later that day they returned and were served by another employee and the insurance policy was renewed.
3:2 On the 25th March 2014 the Complainants again visited the Office and approached Mr.P. He declined to serve them and directed them to wait until another staff member became available. His actions were motivated by a fear of verbal and physical intimidation arising from the alleged behaviour of the Complainants on the 10th March.
3:3 Mr. McD, a colleague of Mr.P, who was present in the office on the 25th March 2014 confirmed the evidence of Mr.P in relation the refusal to serve the Complainants on the 25th March 2014.
3:4 Witness statements were provided by Mr.P and Mr. McD to the Tribunal as were Computer Records /Notes related to both days.
3:5 The Respondent is one of the largest Insurers in the State and has a broad base of customers of varying nationalities. No details are required of customer’s nationality and all Insurance issues are dealt with by reference to underwriting practice. The Company has a large Polish business in Ireland, has a Polish element on their Irish website and many Polish employees in Ireland.
The Complainants remain customers of the Company and have never been discriminated against on grounds of their Polish nationality.
3:6 The core issue was the abusive behaviour and inappropriate language of the Complainants on the 10th March 2014. Mr.P was within his rights to refuse to deal with them on later visits and he directed them to other staff members.
3:7 The claim is frivolous and/or vexatious and should be dismissed under Section 22 of the Act.
4 Conclusions
4:1 In considering this case it is worth looking briefly at relevant precedents particularly Labour Court decisions in this area.
The Respondents rightly draw attention to Europa Plus Limited v Nijole Kvostiene EDA 121. In this case the Labour Court has identified two Tests – “the less favourable treatment test” and the “the reason why test” in discrimination cases. The Court points out that the answers can only be found in the evidence presented. In this case without clear proven evidence of Racial discrimination there can be no claim.
The Labour Court has previously pointed out in Determination EDA0917,Arturs Valpeters v Melbury Developments [2010] 21 ELR 64 quoted below
“that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Court cannot engage in speculation as to how a person of a different nationality to the Complainant would have been treated in a comparable situation nor can it decide the case on the basis of conjecture as to the factual criterion for the treatment complained of. The responsibility to bring forward the necessary proofs to establish the primary facts from which discrimination can be inferred rests fairly and squarely on the Complainant and her legal advisors. There was a total failure to discharge that responsibility in this case. Accordingly the claims of discrimination cannot succeed.”
4:2 In the case in hand there is considerable witness and written evidence from the Respondent which acknowledges the fact that the Respondent’s staff (Mr.P) did decline to do business with the Complainants on the second visit on the 10th March and the later visit on the 25th March 2014. However it was consistently stated that this was due to the alleged inappropriate language used by the Complainants on the first encounter. Mr.P felt intimidated by the use of inappropriate language and referred the Complainants to another staff member. There were absolutely no racial overtones to this and the Complainants continued to do business with the Respondents, albeit with a different staff member.
Correspondence was exchanged in the Polish language and all efforts made to facilitate the conduct of business in a manner helpful to Polish Speakers.
4:3 In considering all the evidence, written and verbal, I could not find any elements of racial discrimination. Whether or not inappropriate language was used in the first encounter is a matter of conjecture – there is no CCTV evidence and all that is available is the recollections of the parties.
The respondent is a very large Insurance Company with well documented procedures in the matters of Customer Care and Equality. The witness evidence given by the staff member who had served the Complainants on the 25th March 2014 was sincere and genuine.
Unfortunately Mr.P for the Respondent has, since the incidents referred to, taken seriously ill and could not give direct verbal personal evidence but he did supply a written statement.
The Complainants were sincere in their evidence but I could not find any telling evidence of racial discrimination. They continued to do business with the Respondent Company.
There was no other witness or third party evidence.
4:4 Accordingly I had to find that the claimants had failed to establish sufficient prima facie grounds to substantiate a claim of Racial Discrimination. The Respondent’s evidence was very much to the contrary and strongly rebutted any possible claims of Racial discrimination. Accordingly the Claim fails.
5 Decision
5.1 Section 38A (1) of the Acts provides that the burden of proof is:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
A case of discriminatory treatment has not been established in this instance.
The claim accordingly fails.
______________________
Michael McEntee
Adjudication Officer/Equality Officer
22nd February 2016