EQUAL STATUS ACTS 2000-2015
Decision DEC – S2016 – 015
PARTIES
Mr Sebastian Prekun and Mr Tadeusz Prekun (represented by Rostra Solicitors)
and
Liberty Insurance Ltd (represented by Mr Francis Kieran, B.L., instructed by Mason, Hayes and Curran, Solicitors)
File References: et-158610-es-15
et-156617-es-15
Date of Issue: 17th February 2016
Keywords: insurance – online quote a “service”? – indirect discrimination – verifiable access to customer’s penalty points amounts to objective justification.
1. Claim
1.1. The case concerns one claim each by Mr Sebastian and Mr Tadeusz Prekun, that Liberty Insurance Ltd discriminated against them on the ground of race contrary to Section 3(2)(h) of the Equal Status Acts 2000 to 2011, in terms of providing each of them with differently priced motor insurance quotes for Irish and EU license holders.
1.2. The complainants referred a complaint each under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 12 August 2015. A submission was received from the complainant on 12 November 2015. A submission was received from the respondent on 24 December 2015. On 15 January 2016, in accordance with his powers under S. 25 of the Acts, the Director General 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. 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 3 February 2016. The last piece of correspondence relating to the complaint was received on 16 February 2016.
2. Summary of the Complainants’ Written Submission
2.1. Both complainants, who are father and son, submit that they are Polish nationals and hold Polish driving licenses. They submit that when they applied for motor insurance quotes with the respondent, the quote for the holder of an Irish driving license was significantly cheaper than the quote for the holder of a Polish driving license.
2.2. According to the complainants, the respondent accepted this price difference in the quotation and explained in writing that it was based on the fact that for holders of Irish driving licenses, the respondent can easily verify a driver’s penalty points, which is not possible when the driver has a Polish license.
2.3. The complainants submit that this amounts to indirect discrimination on the ground of nationality and is repugnant to the EU-law principle of Freedom of Movement and various pieces of EU legislation.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies any alleged discrimination, and states that it does not take into account race, nationality, or national or ethnic origin when pricing its insurance policies. It further states that it is unclear how, beyond seeking quotes on the internet, the claimants can ground a case that a service has actually been provided to them. It also states that it wrote to the complainants’ solicitor, offering each of them a discount if they could verify, from their own country’s relevant authorities, that their driving licenses were penalty-point and conviction-free.
3.2. In respect of the complainants’ claim of indirect discrimination, the respondent disputes that substantially more non-Irish citizens driving in Ireland hold a foreign driving license as opposed to an Irish one, and it also notes that the complainants have adduced no evidence in this matter. It furthermore points out that exchanging the driving license of another EU member state for an Irish driving license is a very un-bureaucratic process which does not put anyone who wishes to do so at a particular disadvantage, such that the provisions of the Equal Status Acts which protect against indirect discrimination would be engaged.
3.3. Last, the respondent argues that the penalty-points discount which the holders of non-Irish driving licenses cannot avail of because insurers have no access to their data, is not connected to race or nationality. On the contrary, the respondent argues that if the holder of a non-Irish license who has penalty points pays as little as the holder of an Irish license without penalty points, it would amount to more favourable treatment of the former.
4. Conclusions of the Equality Officer
Preliminary issue: Is obtaining an insurance quote a service?
4.1. The preliminary issue for decision in this case is whether obtaining a quote for insurance is a service within the meaning of the Acts. Prior to the hearing, I had sent the parties a copy of the Tribunal decision DEC-S2015-004, in which I had dismissed the complaint as frivolous and vexatious because, inter alia, the quotations obtained in that case where for wholly fictitious persons. In addition, these were also “quick quotes”.
4.2. In this case, the complainants stated in evidence, and the respondent confirmed this, that they obtained full quotes with use of their personal data, through the respondent’s online facility.
4.3. Given that the definition of “service” provided in S. 2 of the Acts includes a “facility of any nature which is available to the public” and which expressly includes “facilities for banking, insurance, grants, loans, credit or financing” [emphasis added], I am willing to accept that the respondent’s online quotation facility is a service within the meaning of the Acts. Arguably, obtaining a detailed quotation based on one’s personal circumstance is an engagement with the facility, and therefore usage of a service. The respondent’s director of underwriting further explained that the respondent does not have a “quick quote” service and only provides full quotes based on a customer’s individual circumstances. Accordingly, I am satisfied that obtaining a full, personalised motor insurance quote constitutes the usage of a service within the meaning of the Acts.
4.4. I will now proceed to consider the merits of the substantive case.
Substantive Case
4.5. The main issue for decision in this case is whether the complainants were discriminated against on the ground of race because the respondent provided them with different quotations based on whether they stated they had an EU-driving licence or an Irish one.
4.6. 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 she 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.
4.7. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.8. A complaint of direct discrimination does not really fit the complainants’ circumstances, and their solicitor did not attempt to argue it. Given that comparators in complaints of direct discrimination have to be of different races, nationalities, or ethnic or national origins, but have to find themselves in a comparable situation, it is clear in this case that anyone with a different nationality to the complainants, including an Irish person, who also held an EU-driving licence, would have obtained a more costly quote for reason of their license.
4.9. The complainant’s solicitor instead argued for indirect discrimination. Indirect discrimination is defined in S. 3(1)(c) of the Acts as
where an apparently neutral provision puts a person referred to in S. 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. [Emphasis added]
4.10. Accordingly, the complainants need to show that the fact that holding Irish driving licences instead of EU ones attracted a significant discount in motor insurance, put them at a particular disadvantage. I am willing to accept that the price difference in the quotes can be viewed as that disadvantage. I am further willing to accept their solicitor’s general argument that an Irish motor insurance customer is more likely to hold an Irish driving licence than an EU national. I would like to note, though, that in light of the fact that the complainants’ solicitor accepted that he had no figures at all as to how many Irish and EU-nationals hold Irish and EU driving licences, respectively, and in light of the fact that it is very easy to exchange one’s EU driving license for an Irish driving license, that this is a generous interpretation of evidential requirements in favour of the complainants.
4.11. All of that said, however, I fully accept that the respondent’s argument that the accessibility of information on a driver’s penalty points amounts to objective justification of the practice pursuant to S. 3(1)(c) of the Acts. The respondent’s head of underwriting, Mr L., gave uncontroverted evidence that Irish insurers have access to the penalty points database, including access to information as how the penalty points were incurred. He gave the example that penalty points for speeding would incur a higher quote due to the dangers inherent in it, whereas points incurred for parking on a double yellow line might be disregarded altogether in calculating a quote. The respondent does not give a motor insurance quote to any potential customer who has incurred five or more penalty points. Mr L. further explained that penalty points incurred by EU-license holders in Ireland are stored in the database against a numbered dummy driver identity. The Irish insurance industry has no access to these data. However, An Garda Siochana have access to these dummy identities and could confirm, if asked by a potential insurance customer, that the customer had no penalty points, or less than five penalty points as the case may be. This is the background to the offer the respondent made to the complainants, to have their penalty points verified, which the complainants did not avail of. Should a driver with an EU-license obtain an Irish driving license, the penalty points, if any, would transfer to the new Irish license.
4.12. Mr L. concluded his evidence by stating that the precise information on the number of a driver’s penalty points and why they were incurred informed the insurer’s calculation of risk, and with no such information available, an insurer would take on an unknown risk. Hence a premium applied to underwrite such a risk.
4.13. I am satisfied that this approach is no different to various other rebates, or risk premia as the case may be, which govern the conclusion of an insurance contract. This is further supported by the respondent’s uncontroverted evidence that they would have accepted independent verification of the complainants’ penalty points by An Garda Siochana, to grant them the rebate. Accordingly, I find this to be an objective justification of a legitimate business aim, which has no relationship to a driver’s nationality, and I am satisfied that the means of achieving this aim are appropriate and necessary.
5. Decision
5.1 Based on all of the foregoing, I find, pursuant to Section 25(4) of the Equal Status Acts, that Liberty Insurance did not discriminate against Mr Tadeusz and Mr Sebastian Prekun, pursuant to Sections 3(1), 4 and 5(1) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
17 February 2016