ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000096

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 14^th July 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 also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter. As there had not been time for the Respondent to give direct evidence at the hearing, it was proposed that this matter would be dealt with on its written submissions subject to either Party requesting a further hearing. Additionally and for the sake of completeness, 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, I furnished the Parties with same and invited submissions. Neither Party requested a further hearing but additional submissions were received from the Complainant. The Respondent applied to have the matter dismissed on the basis that Complainant had failed to engage before lodging this complaint but I deemed a more substantive consideration appropriate. All oral and written evidence and submissions presented have been taken into consideration.

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 he had been seeking a policy with more favourable terms. On 14^th July 2015, the Complainant 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, he received a quotation which was significantly higher (approximately 45% more) than when he inputted the same details, but instead indicated that he had an full Irish driving licence. A copy of the online applications were furnished, demonstrating the pricing differential between the two quotations. Arising from same, Solicitors for the Complainant sent the notification dated 4^th August 2015 under Section 21 of the Equal Status Acts to the Respondent. By letter dated 20^th August 2015, the Respondent replied setting out its position and offering the lower rate if the Complainant could provide a letter issued from his licence issuing authority confirming that his licence is points free along with a letter from the National Driving Licence Service (NDLS) confirming that no points have been attributed to his licence whilst driving in Ireland. It also provided details of the Financial Services Ombudsman’s Bureau as an alternative course. The Complainant contended that as the discrimination had already arisen he proceeded to lodge 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 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. As a non-Irish licence holder, the practice was primarily indirectly discriminatory against him as a Polish national 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 and/or to undertake steps such as obtaining verification that his licence was penalty points free to avail of the lower quotation. Overall, 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 and motivations for bringing this complaint contending that it was purely hypothetical. In particular, the Complainant was asked why when the Respondent was offering him insurance at the discounted or lower quotation offered to an Irish licence holder on verification that he had no penalty points, he was pursuing a claim for compensation. The Complainant replied that he felt that he should not be obliged to undertake steps that were not required of an Irish licence holder in order to avail of the lower rate. When asked whether he was aware that he could easily transfer over his Polish licence to an Irish licence, he replied that he was unaware of the process and in any event should not be required to do so to avail of the lower rate. He was also questioned as to why he was seeking a quotation from the Respondent when he already had a much cheaper motor insurance policy. Counsel further queried the additional benefits he thought he would have obtained under the Respondent’s insurance and the veracity of his contention that he had been seeking insurance with more favourable terms.

Respondent’s Submission and Presentation:

At the outset, Counsel for the Respondent contended that this complaint should be dismissed as being frivolous and vexatious as the Complainant had submitted it without responding to its offer of the lower quotation if he could verify that his licence was penalty points free. 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.

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. Firstly 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 either a full EU or full Irish licence and did not require country of issue. Therefore, it could not have directly discriminated against him on the ground of race within the meaning of Section 3 of the Acts in relation to the provision of motor insurance.

Secondly it refuted the existence of any indirect discrimination arising from the price differentials under Section 3(1)(c) of the Acts as the quotations to interested parties are neutral in relation to nationality. The discounted price applies to holders of Irish licences issued by the National Driving Licence Service (NDLS) without penalty points as the Respondent only has access to the penalty point records for such licences via a Road Safety Initiative (known as the ‘hub’). The Respondent is unable to verify the penalty points record in respect of non-Irish licence holders. It was submitted that this provides a very clear objective justification for any difference in treatment between Irish and non-Irish EU licence holders. The holders of Irish licences could be of any nationality and it was open to the Complainant to transfer over to an Irish licence in a very straight-forward process. Additionally, he could have availed of its offer to give him the discounted or lower quotation if he could verify that his licence was penalty points free but he had refused to engage with this offer.

If there was any less favourable treatment on the ground of race which is denied, the Respondent further 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,” It is submitted that the provisions of this subsection are satisfied in that the Respondent relies upon GLM (Generalised Linear Modelling) statistical analysis which suggests that policies with licences from outside Ireland and the UK drive a 55% higher risk cost than policies with Irish/UK licences based upon the Respondent’s policy data. In addition to the actuarial evidence, examples of underwriting factors for the pricing differential between Irish and UK licence holders and non-Irish and UK licence holders were also cited, which it was contended have nothing to do with race or nationality.

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 non-Irish 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 non-Irish 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 some 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 policy 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 respond to its offer to give him the lower rate on verification that he had no penalty points. Overall I found the Complainant to be incredible and in particular arising from his answer to the question as to why he did not consider transferring over his Polish licence to an Irish licence. He replied that he was unaware of the process. However, in its letter of 20^th August 2015 to the Complainant’s Solicitors, the Respondent clearly stated: “Alternatively your client could exchange their current licence for a licence issued by the NDLS further information on how to go about exchanging driving licences is noted on the NDLS website.” (with link provided). It is inconceivable that he would not have considered this letter before instructing his Solicitors to lodge the claim.

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:   25^th October 2016