DEC-S2016-052

Equal Status Acts 2000 to 2011

DECISION NO: DEC-S2016-052

Mr Marcin Wilkocki and Ms Pauline Wilkocka

(Represented by Rory Kennedy B.L.

Instructed by Keith Walsh Solicitors)

V

Liberty Insurance

(Represented by Francis Kiernan B.L.

Instructed by Mason Hayes and Curran.)

File Nos. Et-159871-es-15

Et-159873-es-15

Date of Issue: 5th September 2016

Keywords

Equal Status Acts 2000 to 2011 – Indirect Discrimination, ground of race ,

1 Delegation under the Equal Status Acts 2000 to 2004

Mr Marcin Wilkocki and Ms Paulina Wilkocka (the complainants) referred their complaints to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on 30 September 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 Healy, an Adjudication 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 26th May 2016 at the WRC, Davitt House, Dublin 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 complainants that they 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 quotes for car insurance. The respondent was notified on the 25th September 2015 in accordance with the provisions of the Acts.

3. Complainant’s submission.

3.1 Both of the complainants are Polish nationals residing in Ireland since for a number of years and both hold a full Polish driving licence. It is the complainant’s submission that Ms Wilkocka applied for an online insurance quote from the Respondent, and a number of other insurance companies, in order to see if she could obtain more comprehensive insurance with better terms and price then her current provider. The quote that was returned was €670.55 when the complaint put ‘Full EU’ into licence type. She then re-applied with all the same information save for licence type where she put in “Full Irish” under licence type and received a revised quote of €476.10. The initial quotation is over 28% higher than the quotation for an Irish Licence. The complainant submits that shopping around for an insurance provider is recommended by the Competition and Consumer Protection Commission and other bodies, and it is submitted that the complainant was pursuing best practice in seeking various insurance quotes to assess her options for motor insurance.

3.2 The same arguments are made for Mr Wilkocki who obtained, in the same manner, a quote for €2,271.31 for a full EU licence and €1,543.85 for a full Irish Licence or a 43% difference.

Driving Licences

3.3 The complainant submits that common sense implies and probability dictate that a holder of a non Irish issued driving licence is likely not to be Irish. The complainant submits that this view is mirrored in Anna Kocot v Liberty Insurance Ltd – Decision No: DEC-S2016 -11. The complainant submits that it is worth noting that in this decision there is a fundamental difference considered between an “EU Licence” and an “Irish Licence”. This distinction is not accurate, all licences issued in the EU are “EU Licences” including a driving licence issued in Ireland, or an “Irish Licence”. These licences all look the same save for the country of issues’ name being in the top left corner of the licence, they are all mutually recognised and valid. There is no legal difference in terms of validity to any licence issued by any EU member state and that of a licence issued in Ireland. This distinction is not addressed in either of the decisions and the complainant submits that this is a factor that needs to be considered, and adds to the submission that it is arbitrary and subjective to distinguish between licences issued in other member States and particularly for the Respondents to charge over 28% or 43% more for a premium based solely on the country of issue of the driving licence not being Ireland or the UK.

It is very unusual that UK Licence holders benefit from this “discount” as well and it appears that the insurer distinguishes between main land Europe and Ireland and the UK.

3.4 The complainant submits that the swapping of a licence is not a legal requirement, in fact the EU has deliberately issued regulations to allow for the mutual recognition of all EU driving licences.

Penalty Points

3.5 The complainant submits that (referring to the arguments in the quoted decisions) the use of a possible different contact point to check penalty points on a licence is not an objective justification to increase premiums by over 28%. It is in fact submitted that this is an arbitrary distinction in checking penalty points and the respondent has deliberately chosen to discriminate against a class of people, the vast majority of which are non-Irish, without any legitimate cause.

3.6 The complainant states that it must also be noted that the online questionnaire for insurance quote requests information regards to any penalty points that the driver has incurred. The providing of a false statement in this form can invalidate the offer. The complainant submits that this question alone, and the consequences for not answering honestly, show that the respondent already knows the amount of penalty points a customer must have and so the claim that the respondent can justify an over 28% increase for Non Irish issued EU licence holders is invalid and a red herring

4 SUMMARY OF RESPONDENTS WRITTEN SUBMISSION

4.1 The Respondent rejects the contention that there exists any discrimination at all in the provision of services or products by it on any of the nine grounds set out in the Equal Status Acts 2000-2012. The Respondent submits that it is unaware of either complainant’s nationality. The Respondent states that it does not take into account race, nationality or national or ethnic origins of drivers when pricing its insurance policies. Moreover, during the quotation process, the Respondent does not request information which would enable it to do so.

4.2 The respondent submits that if the adjudicator considers that discrimination has arisen in this complaint, that the same is excused by virtue of being objectively justified pursuant to section 3 (1) (c) of the Equal Status Acts.

4.3 The Respondent submits that the Complainant has put in issue section 5(2) of the Equal Status Acts and it is therefore submitted that that section can support and justify the Respondent’s differences in pricing.

4.4 While it is not disputed that the Complainant has gone on the internet and received a quote from the Respondent’s website in respect of motor insurance, the Respondent asserts that it is unclear from the complaint or the Submissions how precisely the Complainant asserts that a product or service has been provided to him, such that the Adjudicators jurisdiction is engaged at all.

4.5 The Respondent submits that it does not know the race, nationality, place of birth, skin colour or national origin of its customers, nor does it infer this from any information or data provided to it or which it holds. The Respondent refutes any suggestion that it discriminates on this basis, nor could it do so because it does not have information which would enable it to classify customers or potential customers on this basis. The Respondent submits that there can be simply no question of direct discrimination arising, nor does this appear to be even asserted by the Complainant. As noted, the Respondent does not provide different quotes or prices to people on the basis of their nationality.

4.6 The respondent submits that the issue of indirect discrimination’ has no application here for several reasons. First, the Respondent’s quotations of insurance to interested persons are not “apparently neutral” on grounds of nationality; they are neutral. The discount in respect of licences issued by the National Driving Licence Authority (‘NDLA’) without penalty points does not put persons “of different … nationality” at a “particular disadvantage”. Their nationality is irrelevant to the applicability or otherwise of the discount. It is perfectly conceivable that an Irish citizen would not be able to avail of it, but, for example, a Polish citizen would. This would occur if the Polish citizen held an NDLA-issued licence and the Irish citizen held a licence issued by another EU or non-EU authority.

4.7 The respondent submits that non-Irish nationals are not subject to a “particular disadvantage” within the meaning of section 3(1)(c) of the Acts is because there are no barriers preventing a non-Irish national from obtaining a NDLA licence. Nationals of other EU Member states, such as the Complainant, can apply to exchange their EU-issued licences for Irish one simply by filling out NDLS Form D401. The process is not onerous.

4.8 The respondent submits that, the Complainants are attempting to apply equality law to a situation to which it has never applied. They are able to move without significant difficulty from what they contend to be the disadvantaged class to what they contend to be the advantaged class. He does not have to change his nationality, merely his driving licence, which licence is directly relevant to the very product/service in respect of which he makes complaint.

If indirect discrimination arises it is objectively justified

4.9 In 2014 the Minister for Transport introduced legislation amending the Road Traffic Acts so as to allow motor insurers access to penalty points information as part of the Road Safety Initiative (known as the “hub”). It was shortly after this, and by reason of this, that the Respondent introduced its penalty points discount which is now the subject of the Complainant’s compliant. However, the State has not made penalty points data from non-NDLA licences available to the Respondent or to other motor insurers through the hub. This is an action of the State over which the Respondent has no control. However, it is a state of affairs which affords a very clear objective justification for a difference in treatment. The relevant licences are not similarly situated with respect to verifiability of their penalty points status by insurers.

4.10 The respondent submits that even if there is an indirect difference in treatment on grounds of nationality (and there is not), the same is objectively justified, because of the verifiability of the penalty points status of NDLA licence holders, as distinct from the penalty points status of holders of other EU licences.

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 complainants in this instance have framed their complaints on the basis of different treatment due to the presentation of an EU versus an Irish licence. The complainants are administratively categorised by the respondent as an EU licence holder on the basis of their 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 her, 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 complainants obtained two different quotes for the same service. In the instant complaints the respondent has provided a much higher quote based on the country of origin of the complainant’s documentation. I am satisfied that the complainants have established facts from which it may be presumed that prohibited conduct has occurred in relation to her and she has established a prima facie case of indirect discrimination on the ground of race. However, the respondent can successfully rebut this prima facie case if it can show that the neutral provision in question is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

5.6 Section 3(1)(c) of the Equal Status Acts provides:

(c) 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.

At the hearing of this compliant direct evidence was given for the respondent by relevant persons that in this particular case a discount was offered and calculated based entirely on two factors,

• The verification of penalty points
• A more minor discount related to the use of the website

It was their evidence that actuarial techniques above were not considered in the provision of the discount and I have therefore excluded them from my considerations. I accept the account put forward by the respondent and I find the following are the relevant facts in this case.

• The respondent will not provide a quote to potential customers who have excessive penalty points and verification of points is therefore a very serious matter for the respondent.       A discount is available if a potential customer has no (or limited) penalty points. It is reasonable approach by the respondent that independent verification is obtained.
• Verification of penalty points is independently and immediately available to the respondent for NDLS licences. This facilitates the use of a website to provide quotations.
• An administrative efficiency has arisen, outside of the control of the respondent. The complainant can at any time obtain a NDLS licence and avail of the same administrative efficiency and resulting discount, but they choose not to do so.
• I am satisfied that the respondent’s policy of verifying penalty points was put in place to achieve a legitimate aim and the means of achieving that aim are appropriate and necessary. I find no evidence that the respondent’s treatment of the complainant in this case was at any time motivated by the ground of race.
• The administrative burden that would be placed on the Respondent if they were required to independently check penalty points is significant enough that it can not be evidence of an arbitrary approach by the respondent.

5.7 With regard to the complainants arguments about the mutual recognition of all EU driving licences, I must agree with the respondents point that the relevant licences are not similarly situated with respect to verifiability of their penalty points status by insurers.

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 complainants have established a prima facie case of indirect discrimination on the ground of race and that the respondent has successfully rebutted the allegation of discrimination.

6.3. Accordingly, I find in favour of the respondent in both complaints.

______________

Peter Healy

Adjudication Officer

5th September 2016