Equal Status Acts 2000 to 2011
DECISION NO: DEC-S2016-032
Mr Marcin Wilkocki
(Represented by Rostra Solicitors)
-V-
Allianz PLC
(Represented by Ms Rosemary Mallon B.L.
Instructed by Whitney Moore Solicitors.)
File Nos. Et-157201-es-15
Date of Issue: 26th May 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 Mr Marcin Wilkocki (the complainant) referred his claim to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on 24 June 2015. On 12th February 2016, in accordance with his powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Peter Heaely, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. A hearing took place on the 6th April 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 he 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 he is a Polish national residing in Ireland since 2005, who holds a full Polish driving licence since 2000 valid for category B vehicles and has a no claim discount of four years earned solely in Ireland.
3.2 The complainant submits that on the 12th June 2015 the respondent provided him through their website with a quote of just over €942 for car insurance, taking into account a full EU driving licence. Using the same method the complainant submits he obtained a quote for €768 if he had a full Irish driving licence and €760.17 if he had a full UK 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/ or the United Kingdom.
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 his 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 submits that the complainant was given a higher quote for insurance based on his licence type and that at no stage was the Respondent’s treatment of the complainant motivated by virtue of their race or nationality.
4.2 The respondent submits that, on their website potential customers are not asked to state their nationality. The respondent does, however ask what licence type the customer has as it is the licence type as opposed to the nationality of the customer which is a rating factor used by the Respondent in determining the premium to be paid.
4.3 The respondent submits that it is simply incorrect for the complainant to allege that he was treated less favourably than an Irish national. The respondent asserts that an Irish national with an EU licence will be quoted the same premium as non-Irish national with an EU licence (all other factors being equal). The respondent submits that, the nationality of the person is wholly irrelevant; the rating factor used by the Respondent is the licence type not the nationality of the person seeking insurance. Similarly an Irish national with an Irish licence would be quoted the same premium as a non-Irish national with an Irish licence.
4.4 The respondent submits that if an Irish national learnt to drive in an EU country he/she would have an EU licence as opposed to an Irish licence. That person would be treated by the Respondent in the exact same manner as a non- Irish national with an EU licence. The respondent says that it is important to note that there are no barriers to non-Irish nationals obtaining an Irish driving licence. Firstly, a non- Irish national can pass the Irish driving test and he/she will obtain an Irish licence. Secondly, if a non-Irish national has a driving licence issued by an EU/EEA member state he/she can exchange that driving licence for an equivalent Irish driving licence but they must do so within 10 years of their EU/EEA driving licence expiring. This exchange is carried out by the National Driver Licence Service. This is a simple and easy process and in no way onerous.
4.5 In all the circumstances it is the respondents submission that the complaint must simply fail as there is no difference in treatment between Irish and non-Irish Nationals by the Respondent. However, strictly without prejudice to the foregoing the Respondent has provided detailed written and oral evidence of their actuarial and statistical data which they say explains the difference in premium. I will not give details of that evidence in this decision as it is commercially sensitive.
4.6 However it is the respondents submission that at its simplest and most basic the actuarial analysis of the Respondent’s own data from these years establishes that EU licence holders have significantly greater claims costs than those with a full Irish licences and this is a statistic that is consistent across a number of years analysed. The respondent submits that it is not their job or the job of their actuarial team to speculate as to the reasons why there is this difference between EU licence holders and those who have full Irish licences. However, it is the role of the Respondent to consider the statistics as analysed and to quote premiums accordingly. The Respondent is a commercial enterprise whose profitability is based on assessing risk factors correctly and calculating premiums accordingly.
4.7 It is respectfully submitted that the jurisdiction of an adjudicator in such cases is clear and limited. An adjudicator does not have jurisdiction to consider or rule on questions of compatibility.
4.8 It is the Respondent’s position that the provision of quotes via the Respondent’s website is not a service within the meaning of the Act. Section 5(1) of the Acts speaks of “providing a service”. The provision of a quote for insurance which a person may or may not accept is not the provision of a service. No actual service is being provided. At its height all that the Respondent is providing is a mechanism whereby a person is informed of the potential cost if he or she decides to seek insurance cover from the Respondent.
4.9 The Respondent is aware of the Equality Tribunal decisions DEC-S2015-004 and DEC-S2016-015. Without prejudice to the Respondent’s contention that this is not the provision of a service the Respondent submits that it is for the complainant to establish by way of evidence that a full personalised motor quote was sought by them using their own personal data
4.10 The respondent submits that anyone with a different nationality to the complainant(including an Irish national) who held an EU-driving licence, would have obtained a more costly quote due to their licence than a person who held an Irish licence. The Respondent submits that they are simply unaware of a person’s race, nationality, national or ethnic origins etc when a quote is produced by the website and that this information is not inferred by the Respondent from the information that is obtained when providing a website quote.
4.12 The Respondent rejects any suggestion of indirect discrimination and submits that the complainant has not produced any evidence whatsoever that there are substantially more non-Irish nationals driving in Ireland who hold EU-licences as opposed to Irish licences. It is respectfully submitted that it is not appropriate to simply assume that non-Irish national drivers more frequently hold an EU licence as opposed to an Irish licence. In particular it is of significant relevance that a non-Irish National can apply to exchange their EU licence for an Irish licence. This is not a difficult or complicated procedure. There are no barriers to a non-Irish national obtaining an Irish licence. It is submitted that this is of relevance for two reasons:
(a) This establishes that one cannot assume that there are substantially more non-Irish nationals driving in the State holding licences issued by other EU member states as opposed to Irish licences
(b) Non –Irish nationals are not at a “particular disadvantage” as EU nationals (such as the Claimants) can easily and simply apply for an Irish licence.
4.13 The Respondent also relies upon DEC-S2016-011 and the Respondent submits (strictly without prejudice to the foregoing) that if it is found that discrimination exists that same can be justified/excused by virtue of Section 5(2) of the Acts.
4.14 In their written submission the respondent has submitted actuarial and statistical information. It is submitted that insurance risk assessment is not discrimination. Risk must be reflected in price for an Insurance company. The data considered by the Respondent is reasonable data to rely upon. It is the Respondent’s own data taken over a significant number of years. It is reasonable for the Respondent to rely on its self as the source of the data given the number of samples that were examined and considered. From a commercial perspective it is essential that an Insurance Company such as the Respondent be permitted to assess risk fairly on the basis of statistical and actuarial analysis. The Respondent is a commercial enterprise. Therefore, it is entirely appropriate (in light of the submitted data and analysis) for the Respondent to consider the type of licence an individual holds as one of the many factors it uses to fairly assess risk and determine premiums.
4.15 Section 3(1)(c) of the Equal Status Acts provide that 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. There is quite clearly a very legitimate business aim on the part of the Respondent. That aim is to ensure that premiums are calculated properly and appropriately based on a variety of factors which reflect the risk of the insured to the Respondent. This has nothing whatsoever to do with the driver’s nationality or race. The Respondent is a commercial enterprise who is entitled to seek to make a profit. Consideration of the type of licence held by a person seeking insurance is no different to other factors considered by the Respondent in accordance with its legitimate business aim.
”
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 his 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 his 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 his, 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 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 him and he has established a prima facie case of indirect discrimination on the ground of race.
5.6 Section 5 of the Acts state:
“(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public 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
(2) Subsection (1) does not apply in respect of-
…
(d) differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment -
(i) is effected by reference to-
(I) Actuarial and statistical data obtained from a source on which it is reasonable to rely, or
(II) Other relevant underwriting and commercial factors
and
(ii) it is reasonable having regard to the data or other relevant factors”
5.7 Taking into account all of the evidence put forward and having examined the actions of the respondent, I am satisfied that the respondent has provided different quotes for the provision of a service based entirely on actuarial reviews, consistent with industry standards, indicating that higher claims costs are more likely to arise from claims from a particular cohort of claimants.
While the initial facts are sufficient to establish a prima facie case, following examination of the respondents business and pricing process I am satisfied that the respondent did not treat the complainant differently due to his nationality. I accept that the respondent treats other Polish nationals in exactly the same manner as Irish nationals, providing that they conform to a very simple administrative requirement. I find that all of the less favourable treatment alleged by the complainant is entirely due to actions by the respondent which are covered by section 5(1)(d) of the Acts, specifically
. (I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or
(II) other relevant underwriting or commercial factors,
I find that the application of these factors by the respondent is reasonable having regard to all the relevant facts of this complaint. Therefore the complaint must fail.
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 rebutted this inference of discrimination by reference wto section 5.(1)(d) of the Acts.
6.3. Accordingly, I find in favour of the respondent in this case
______________
Peter Healy
Adjudication Officer
26th May 2016