DEC-S2016-011

Equal Status Acts

DECISION NO: DEC-S2016-11

Anna Kocot

(Represented by Mr Diarmuid Murphy B.L.

Instructed by Rostra Solicitors)

V

Liberty Insurance

(Represented by Mr Francis Kiernan B.L.

Instructed by Mason Hayes and Curran.)

File Nos. ET-154383-es-15

Date of Issue: 11 February 2016

Keywords

Equal Status Acts 2000 to 2011 – Indirect Discrimination, ground of race ,

1 Delegation under the Equal Status Acts 2000 to 2004

1.1 Ms Anna Kocot (the complainant) referred her claim to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on 6th March 2015. On 22nd December 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A hearing took place on the 2nd February 2016 at the WRC, Davitt House, Dublin 2.

1.2 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 Dispute

2.1 The dispute concerns claims by the complainant that she was discriminated against by the respondent on ground of race in terms of Sections 3(2) (h), contrary to Section 5 of the Equal Status Act, 2000-2012 relating to a quote for car insurance. The respondent was notified on the 3rd March 2015 in accordance with the provisions of the Acts.

3. Complainant’s submission.

3.1 The complainant submits that she is a Polish national residing in Ireland since 2007, who holds a full Polish driving licence since 2006 valid for category B vehicles.

3.2 The complainant submits that on the 28th February 2015 the respondent provided her through their website with a quote of just over €5,021 for car insurance, taking into account a full EU driving licence. Using the same method the complainant submits she obtained a quote for €3535 if she had a full Irish driving licence. The complainant submits that the difference in quotes seems to be caused solely by the fact that the issuing authority of the driving licence was outside Ireland.

3.3 The complainant submits that the actions by the respondent are an act of at least indirect discrimination. The complainant submits that this Tribunal is required to decide if Section 5(2) of the Acts applies to her complaint in light of various EU Directives and the Test-Achats case (C-236/09) of the Court of Justice of the European Union.

4 SUMMARY OF RESPONDENTS WRITTEN SUBMISSION

4.1 The Respondent rejects the contention that there exists any discrimination at all in the provision of services or products by it on any of the nine grounds set out in the Equal Status Acts 2000-2012. The Respondent submits that it was unaware that the complainant was Polish until she complained that the Equal Status Acts had been breached. The Respondent submits that it does not take into account race, nationality or national or ethnic origins of drivers when pricing its insurance policies. The respondent submits that it does not know the race, nationality, place of birth, skin colour or national origin of its customers, nor does it infer this from any information or data provided to it or which it holds. The Respondent refutes any suggestion that it discriminates on this basis, nor could it do so because it does not have information which would enable it to classify customers or potential customers on this basis.

4.3 It is respectfully submitted by the respondent that I am confined to my statutory jurisdiction under the Equal Status Acts, with no jurisdiction to consider the compatibility of those Acts with EU Directives, much less with, the Charter on Fundamental Rights of the EU or the Treaty on the Functioning of the EU (‘TFEU’) as the complainant seeks.

4.4 The Respondent’s submits that a discount in respect of licences issued by the National Driving Licence Authority (‘NDLA’) without penalty points does not put persons “of different … nationality” at a “particular disadvantage”. Their nationality is irrelevant to the applicability or otherwise of the discount. The respondent submits that it is perfectly conceivable that an Irish citizen would not be able to avail of it, but a Polish citizen would. This would occur if the Polish citizen held an NDLA-issued licence and the Irish citizen held a licence issued by another EU or non-EU authority.

4.5 It is not accepted by the Respondent that ‘substantially more’ non-citizens driving in the jurisdiction hold licences issued by another Member State as opposed to an NDLA-issued licence, and absolutely no evidence to such effect has been adduced, nor are there any grounds for assuming this to be the case.

4.6 The respondent submits that while non-Irish nationals are not subject to a “particular disadvantage” within the meaning of section 3(1)(c), because there are no barriers preventing a non-Irish national from obtaining a NDLA licence. The respondent submits that nationals of other EU Member states, such as the Claimant, can apply to exchange their EU-issued licences for an Irish one simply by filling out NDLS Form D401. The respondent submits that this process is not onerous.

Objective justification.

4.7 The respondent submits that if this Tribunal considers that discrimination has arisen, it is excused by virtue of section 5(2) of the Equal Status Acts and/or is otherwise objectively justified. The respondent submits that, in February 2014 the Minister for Transport introduced legislation amending the Road Traffic Acts so as to allow motor insurers access to penalty points information as part of the Road Safety Initiative (known as the “hub”). It was shortly after this, and by reason of this, that the Respondent introduced its penalty points discount which is now the subject of the complaint. However, the State has not made penalty points data from non-NDLA licences available to the respondent or to other motor insurers through the hub. The respondent submits that this is an action of the State over which it has no control, however it is a state of affairs which affords a very clear objective justification for a difference in treatment. The relevant licences are not similarly situated with respect to verification of their penalty points status by insurers. The respondent submits that a further dimension to the objective justification here is that the verification deficit can be resolved by persons in the position of the Claimant by transferring their licence.

4.8 In addition to the reasons for objective justification given above the respondent submits that actuarial techniques such as GLM (Gereralised Linear Modelling) analysis are used by insurers, including the Respondent, in the development of rates. GLM analysis takes factors and the claims experience associated with those factors and defines the relative risk difference between those factors. The respondent submits that GLM analysis suggests that policies with licences from outside Ireland and the UK drive a 55% higher risk cost than policies with Irish/UK licences based on the Respondent’s policy data. The respondent has offered to furnish this Tribunal with an extensive written and oral evidence regarding the conclusions of GLM analysis if necessary.

4.9 The respondent submits that I as Adjudicator am confined to the statutory jurisdiction of the Equal Status Acts and cannot look behind them by reference to provisions of EU law. The respondent submits that this has been definitively established in a number of recent cases, including Minister for Justice v Director of the Equality Tribunal [2010] 2 IR 455 and from An Taoiseach v Commissioner of Environmental Information [2013] 2 IR 510.

5 CONCLUSIONS OF THE EQUALITY OFFICER

5.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(h) of the Acts. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

5.2 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the race ground).... A person is treated less favourably than another person is, has been or would be treated.

Section 3(2) provides that:as between any two persons, the discriminatory grounds ...are ... (h) that they are of different race, colour, nationality or ethnic or national origins (the ”ground of race”),”

The complainant in this instance framed her complaint on the basis of different treatment due to the presentation of an EU versus an Irish licence. The complainant is administratively categorised by the respondent as an EU licence holder on the basis of her Polish licence. I accept that not all driving licence holders are of the same nationality as the issuing authority. However I find that a reasonable person would impute a nationality to an individual based on the county or origin of such official documentation, in the absence of any other evidence. I find that there is a reasonable connection with nationality in this complaint and therefore I find that this complaint is on the ground of race.

5.3 Section 5(1) provides that:

A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

5.4 The burden of proof is set out in Section 38A which provides that:

" 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."

Although the instant case is taken under the Equal Status Acts, Section 38A is analogous to Section 85A of the Employment Equality Acts. In this regard, I consider that it is appropriate for me to consider the Labour Courts comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”.

Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

Indirect Discrimination.

5.5 It is agreed that the complainant obtained two significantly different quotes for the same service. In the instant complaint the respondent has provided a much higher quote based on the country of origin of the complainant’s documentation. I am satisfied that the complainant has established facts from which it may be presumed that prohibited conduct has occurred in relation to her and she has established a prima facie case of indirect discrimination on the ground of race. However, the respondent can successfully rebut this prima facie case if it can show that the neutral provision in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

5.6 Section 3(1)(c) of the Equal Status Acts provides:

(c) where an apparently neutral provision puts a person referred to in any paragraph

of section 3(2) at a particular disadvantage compared with other

persons, unless the provision is objectively justified by a legitimate aim and

the means of achieving that aim are appropriate and necessary.

At the hearing of this compliant direct evidence was given for the respondent by the Head of Pricing and the Head of Underwriting that in this particular case a discount was offered and calculated based entirely on two factors,

The verification of penalty points
A more minor discount related to the use of the website

It was their evidence that actuarial techniques outlined at 4.8 above were not considered in the provision of the discount and I have therefore excluded them from my considerations. I accept the account put forward by the respondent and I find the following are the relevant facts in this case.

The respondent will not provide a quote to potential customers who have excessive penalty points and verification of points is therefore a very serious matter for the respondent. A discount is available if a potential customer has no (or limited) penalty points. It is reasonable approach by the respondent that independent verification is obtained.
Verification of penalty points is independently and immediately available to the respondent for NDLS licences. This facilitates the use of a website to provide quotations.
An administrative efficiency has arisen, outside of the control of the respondent. The complainant can at any time obtain a NDLS licence and avail of the same administrative efficiency and resulting discount, but she chooses not to do so.
I am satisfied that the respondent’s policy of verifying penalty points was put in place to achieve a legitimate aim and the means of achieving that aim are appropriate and necessary. I find no evidence that the respondent’s treatment of the complainant in this case was at any time motivated by the ground of race.

6 Decision

6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision.

6.2 I find that the complainant has established a prima facie case of indirect discrimination on the ground of race and that the respondent has successfully rebutted the allegation of discrimination.

6.3. Accordingly, I find in favour of the respondent in this case

______________

Peter Healy

Adjudication Officer

11th February 2016