ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000043

Complaint for Resolution:

Date of Adjudication Hearing: 05/02/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred a complaint under Section 21 of the Equal Status Acts 2000-2015 (also referred to as ‘the Acts’) to the Workplace Relations Commission (hereinafter ‘WRC’) on 5^th October 2015, a notification having been sent to the Respondent on 4^th August 2015 and the subject-matter of this complaint arising on 26^th June 2015. This complaint is one of three identical complaints lodged on the same date by the Complainant against different Insurance Companies, referred to me by the Director General for hearing and determination pursuant to Section 25 of the Equal Status Acts. I proceeded to hearing on 5^th February 2016. I inquired into the complaint and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were legally represented with Solicitors and Counsel. In addition to the evidence adduced, oral and written submissions were received from both Parties. I indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter. As two key decisions were issued by the former Equality Tribunal shortly after this hearing in relation to similar complaints which were pertinent to the instant case, for the sake of completeness, I furnished the Parties with same and allowed a reasonable period for any additional written submissions arising. All oral and written evidence and submissions have been taken into consideration in my decision.

Complainant’s Submission and Presentation:

The Complainant gave evidence confirming that he is of Polish nationality and has been residing in Ireland since 2004. He holds an EU driving licence issued in Poland which he produced at the hearing and has a clean driving record. Although he has an existing motor insurance policy with another insurance company valid from 1^st April 2015 until 31^st March 2016 which he had not changed to date, he said that he had been seeking a policy with more favourable terms. On 26^th June 2015, he applied via the Respondent’s website for a quotation for insurance on his car. When he inputted his personal and vehicle details, indicating that he had a full EU driving licence from Poland, he received a quotation which was significantly higher (approximately 40% more) than when he inputted the same details, but instead indicated that he had a full Irish driving licence. A copy of the two applications were furnished, demonstrating the pricing differential between the two quotations. Solicitors for the Complainant sent a notification dated 4^th August 2015 under Section 21 of the Equal Status Acts to the Respondent and lodged this complaint on 5^th October 2015.

It was submitted on the Complainant’s behalf that this experience mirrors the quotations received by a number of other foreign nationals who have submitted similar claims to the WRC. As a holder of a Polish issued licence, it was contended that such a large price differential between the two quotations is both directly and indirectly discriminatory on the ground of race pursuant to Sections 3 and 5 of the Equal Status Acts in relation to the provision of a service comprising of motor insurance. In particular, it was submitted that as Polish licence holders are more likely to be of Polish nationality, the practice was indirectly discriminatory and the price differential therefore constituted less favourable treatment than an Irish national who was more likely to hold an Irish licence. It was also discriminatory to require him to transfer over to an Irish licence in order to avail of the lower quotation. It was further submitted that such a large differential is arbitrary and cannot be defended or reasonably justified with actuarial evidence under Sections 3(1)(c) or 5(2)(d) of the Acts.

Counsel for the Respondent questioned the Complainant’s bone fides contending that this was purely a hypothetical complaint. He questioned him extensively as to his motivations for seeking a quotation from the Respondent when he already had a much cheaper motor insurance policy. In particular, he was asked had he considered transferring his Polish issued licence for an Irish issued licence which would have enabled him to avail of the lower quotation. He replied that he had never thought about it. He was asked why he had not engaged with the Respondent before submitting this complaint or reverted to his broker to enquire about changing his insurance policy. Initially the Complainant denied that he had sought quotations from and/or brought similar complaints against other insurance companies and after a short recess, conceded that he had and this was simply a misunderstanding. Counsel also questioned him as to the additional benefits he would have obtained under the Respondent’s insurance. It was put to him that there were no real advantages of availing of the Respondent’s insurance and despite seeking more favourable insurance, he had never in fact changed his insurance policy. Additionally, he had inputted his details as an Irish licence holder before he had inputted his details as a Polish licence holder when seeking the quotations.

Respondent’s Submission and Presentation:

At the outset, Counsel for the Respondent contended that this complaint was frivolous and vexatious in that it was purely hypothetical and the Complainant had no credibility or intention of availing of the Respondent’s motor insurance based on the fact that he already had insurance and the evidence adduced as outlined above and should be rejected on that basis. In this respect, reliance was placed upon the decision of the Equality Tribunal in A -v- An Insurance Broker (DEC-S2015-004) which found the complaint to be frivolous and vexatious within the meaning of Section 22 of the Equal Status Acts, in circumstances where that complainant had used fictional details to obtain an insurance quotation and had never actually taken out insurance with the respondent.

It was further submitted that the Respondent is a reputable international insurance company with a racially and nationally diverse workforce, and actively seeks foreign custom with a Polish section on its website and Polish-speaking customer representatives. It operates in a competitive market and is therefore naturally keen to offer attractive prices and also has the widest acceptance criteria.

Without prejudice, it was submitted that the Complainant was not treated any differently because of his race or nationality in relation to the pricing differential and he has not established any facts constituting prima facie evidence of either direct or indirect discrimination. Detailed operational and actuarial evidence was called on behalf of the Respondent. Firstly it was confirmed that the Respondent was unaware that the Complainant was a Polish national at the time of the alleged impugned action as its website only required specification of driving licence type and a Polish licence could be held by a person of any nationality. Secondly the price differential between the insurance quotations as complained of was not based upon race or nationality but was associated with the place of issue of the driving licence. This is based upon reliable, up-to-date underwriting and commercial data gathered from the Respondent’s policies which demonstrate that insured persons with non-Irish or UK licences had significantly greater costs per claim and represented a greater percentage of total premiums paid as claims (the ‘loss ratio’). As policies issued to persons with non-Irish or UK licences demonstrably cost the Respondent more than policies issued to Irish and UK licence holders, consequently the prices were increased and are kept under review. Supporting calculations were produced and confirmed in evidence. It was further submitted that there is also a legitimate difference in the regulatory status of Irish and UK licences as against those of other states including EU States. This includes the mutual recognition of driving disqualification between Ireland and the UK and the fact that currently there is only a facility to check the penalty points record on Irish issued licences. Accordingly Irish and UK licences are categorised together. It was also open to the Complainant to transfer his Polish licence to an Irish licence and avail of the lower quotation in a straightforward process. In response, Counsel for the Complainant questioned the Respondent’s experts in relation to the actuarial basis for justifying such a large price differential.

Finally it was submitted on behalf of the Respondent that if there was any less favourable treatment on the ground of race which is denied, it relies upon Section 5(2)(d) of the Acts which provides an exemption on unequal treatment in that Section 5(1) does not apply to “differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk (other than on the gender ground or in any other circumstances to which the Gender Goods and Services Directive is relevant) where the treatment- (i) is effected by reference to- (I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or (II) other relevant underwriting or commercial factors, and (ii) is reasonable having regard to the data or other relevant factors,” The provisions of this subsection are satisfied in that the data showed a clear actuarial differentiation in costs per premium in respect of certain licence holders and there was a different underwriting and commercial risk. Reliance was placed upon the decision of A Complainant -v- A Life Insurance Provider (DEC-S2011-064). Likewise if the Complainant is alleging indirect discrimination under Section 3(1)(c) of the Acts, the pricing differential is objectively justified by a legitimate aim and the means of achieving that aim is appropriate and necessary.

Issues for Decision:

I must firstly determine as a preliminary issue whether this claim falls within Section 22 of the Equal Status Acts which provides: “The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.” If this issue is determined in favour of the Complainant, I can then proceed to consider the substantive issue of whether he was discriminated against on the ground of race in relation to availing the Respondent’s insurance, either directly or indirectly.

Preliminary Issue:

The Respondent contends that the Complainant was not in fact availing of a service within the meaning of the Equal Status Acts and that this complaint is purely hypothetical. In relation to the provision of services, 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”. In this respect, the Complainant gave evidence that he had sought a quotation on the Respondent’s website as he was looking for a more favourable motor insurance policy than his existing policy and framed the complaint accordingly. There was no complaint that he had suffered discrimination in relation to obtaining a quotation from the Respondent per se and indeed I cannot see how any such a complaint can arise in circumstances where he was provided with a quotation. The alleged discrimination arises from the fact that as a holder of a Polish issued driving licence, the Complainant would have to pay a much larger premium than a holder of an Irish issued licence (noting that both are EU licences) for the same insurance policy. Therefore there could only be potential discrimination if he was genuinely trying to avail of the insurance policy and would be disadvantaged by the increased price quoted to him as a holder of a Polish licence.

Having observed the Complainant give his evidence and considered his evidence at its height including his response to questioning, I have formed the view that he had no intention of changing his insurance policy and this is a wholly artificially constructed claim, brought solely for the purpose of testing legal points that have featured in similar claims to the Equality Tribunal and the WRC. In so finding, I am particularly influenced by the fact that the Complainant had a much cheaper insurance policy with over nine months to run at the time of the alleged impugned action. When questioned, he was unable to identify any real advantages afforded by the Respondent’s insurance over his existing insurance or demonstrate any real motive for changing his insurance. This position is further supported by the fact that he did not engage with the Respondent before submitting this claim, or revert to his broker who had organised his existing policy to enquire about changing his insurance policy. I also found the Complainant to be evasive in that he initially denied that he had sought quotations from and/or had brought similar complaints against other insurance companies.

Turning to the relevant case law in relation to ‘frivolous and vexatious’ claims or proceedings, the legal position is usefully summarised in A -v- An Insurance Broker (DEC-S2015-004) as follows:

“Even without Clarke J.s recent reminder in Christian Brothers High School Clonmel v. Mary Stokes (on behalf of John Stokes, a minor), which concerned a Supreme Court appeal under the Equal Status Acts, that “in order for an individual to have standing to mount a claim, the individual must be affected by the rule in question” (paragraph 8.5 of Clarke J.s judgement), it is a fundamental principle of law that one cannot ground a complaint of any kind on wholly fictional scenarios. Accordingly, the question arises whether the within complaint is frivolous and vexatious…

“Frivolous and vexatious” are legal terms of art whose meaning in law differs markedly from their use in everyday parlance. In particular, they do not imply that any complainant who has brought a complaint which is subsequently found to be frivolous and vexatious is in any way a frivolous or vexatious person, a point also emphasised by Barron J in Farley v Ireland & Ors [1997] (see below). Rather, a legal complaint is said to be frivolous when any decision made by a Court or Tribunal cannot change, or improve upon as it may be, the outcome which already exists for the parties. It may simultaneously be rated as vexatious when respondent is put to the inconvenience and expense to defend such an action regardless of its lack of possible success.

The meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, at page 1521] in which he stated: “So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘

In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], the Supreme Court reiterated the principles already well established. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.”

Applying the aforesaid principles to my findings, I have formed the opinion that that this complaint is frivolous and vexatious within the meaning of Section 22 of the Equal Status Acts and should be dismissed accordingly. It is therefore unnecessary to consider the substantive issue. As a publicly funded forum established for the purposes of resolving workplace and equality disputes, the WRC Adjudication Service should be reserved for those with actual grievances and not used as a mechanism for testing hypothetical legal points or piggybacking on other complaints. I am also of the view that such claims place an unfair burden on Respondents in terms of defending same.

Decision:  

Based on all of the foregoing, I find pursuant to Section 25(4) of the Equal Status Acts that this complaint is frivolous and vexatious within the meaning of Section 22 and dismiss same accordingly.

Dated:   19^th October 2016