EQUAL STATUS ACTS
DECISION NO. DEC-S2016-071
PARTIES
Enda Shanahan
-v-
Laya Healthcare Ltd.
File reference: et-157630-es-15
Date of issue: 23 November 2016
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2011 on the 10 July, 2015. On the 15 June 2016, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 11 October, 2016.
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 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that he was discriminated against by the above named respondent on the age ground in terms of Sections 3(1) and 3(2) contrary to Section 5 of the Equal Status Acts in relation to access to a service.
3. Summary of the Complainant's Case
3.1 The complainant states that on 6 March 2015, he tried to avail of winter sports travel insurance on the respondent website. He contends that he was unable get insurance on-line because he was over 65 years of age and was directed to a telephone number which he subsequently dialled. The complainant submits that when he spoke to the insurance representative, he was informed that he could not be given winter sports insurance because of his age, i.e. - 66 years. The complainant pointed out that he was a Laya Healthcare insurance member and that this was discrimination on age grounds. The complainant informed the representative that he was fit enough to ski and run distances from 10K to marathons and that it made no sense excluding him from insurance on age grounds alone. Following this treatment, the complainant called another insurance company and was immediately given winter sports travel insurance and took his ski holiday without any problems. The complainant states that on 2 April 2015, he wrote to the MD of the respondent company describing what had occurred and giving him the opportunity to respond and correct matters but he received no reply. The complainant then lodged a complaint under the equal status legislation. The complainant states that Company A, who underwrites the insurance claims for the respondent wrote to him on 30 June 2015 accepting that he had been refused cover because of his age and offered him a free winter sports policy but he had already got insurance cover from another company. Company A also advised that the website had been updated accordingly.
3.2 The complainant submits that he was annoyed as the respondent would not accept responsibility for the matter and kept laying the blame on Company A, the underwriter. He states that the respondent claimed it was only the insurance intermediary and forwarded the complaint to Company A who the respondent stated was the appropriate entity to address the issue. The complainant also made the point that, for the respondent to interpret his letter to Company A, noting that they had taken his complaint seriously and as evidence that he was satisfied that his claim of discrimination was addressed adequately, is disingenuous. In this regard, the complainant reiterates that in his letter he states “these are positive actions but do not sufficiently address the age discrimination issue”. The complainant maintains that the respondent consistently tried to evade responsibility for the discrimination and that he was driven to lodge a case under the equality legislation. The complainant feels very distressed in the manner in which he was treated and states that he has demonstrated a prima facie case of discriminatory treatment on the grounds of his age.
4. Summary of the Respondent's Case.
4.1 The respondent accepts that the complainant was unable to receive a quotation for winter sports travel insurance either online or over the telephone as a result of his age. It fully accepts that it should have stated the options that were available for obtaining the travel insurance for someone over the age of 65. The respondent unreservedly apologised to the complainant for the administrative error which it states was inadvertent. In relation to the chain of events, it states that while the complainant wrote to it on 2 April 2015 outlining what had occurred, it acknowledged receipt of its correspondence on 7 April via e-mail. In this e-mail, the respondent advised that the complaint had been forwarded to Company A as they and not Laya were the appropriate entity to respond to the complaint. The respondent states that it is an insurance intermediary for Company A with all its travel policies exclusively underwritten by Company A. The respondent submits that any travel complaints received by it are dealt with by Company A as standard. The respondent understands that Company A engaged with the complainant regarding his complaint and contacted him to clarify the cover available and to offer an alternative product. Company A apologised for the response given by the original customer service representative and confirmed they had conducted an investigation and proposals to remedy the situation. The respondent maintains that the complainant responded to Company A on 8 July 2015 acknowledging that they had taken his complaint seriously and were prepared to make changes to the respondent website. The respondent states that the complainant, although acknowledging these were positive actions, indicated that these actions did not sufficiently address the age discrimination issue and confirmed his intention to lodge a case.
4.2 The respondent states that in a further attempt to resolve the matter, it tried to call the complainant and e-mailed him on 21 July 2015. The respondent again apologised and enquired if there was anything else it could do to resolve the issue and improve its processes going forward. The respondent submits that the complainant responded that day by e-mail to decline the offer and indicated that it was now a matter for the Equality Tribunal. The respondent reiterates that it was an inadvertent administrative error and that once brought to its attention, it immediately implemented amendments to remedy the situation. In this regard, the website was amended immediately and relevant training was provided to all members of staff who deal with customers.
5. Conclusions of the Equality Officer
5.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts sets out the burden of proof which applies in a claim of discrimination. 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. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
5.2 In the instant case, the respondent accepts that the complainant was unable to receive a quotation for winter sports travel insurance either online or over the telephone as a result of his age. It fully accepts that it should have stated the options that were available for obtaining the travel insurance for someone over the age of 65. The respondent unreservedly apologised to the complainant for the error on behalf of its customer representative which it states was inadvertent administrative error. The respondent also stated that the complainant was offered free winter sports travel which the complainant declined as he had got cover elsewhere. The respondent also described that once the issue had been brought to its attention, immediate remedial action was taken, in that, the website was updated accordingly and relevant training was provided to all customer service staff. On the basis of the totality of the evidence adduced, I am satisfied that the complainant has established a prima facie case of discrimination on grounds of age. However, I am also cognisant of the remedial action taken by the respondent following the complaint with regard to it updating its website and appropriate training given to all customer service staff.
6. Decision
6.1 Inreaching 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 direct discrimination on the grounds of age.
6.3 In accordance with Section 27 of the Acts, I order the respondent to pay the complainant €1,000 in compensation for the distress caused. This award is arrived at having regard to the measures put in place by the respondent to address the complaint.
_________________
Valerie Murtagh
Equality Officer/Adjudication Officer
23 November, 2016