Complainant

Respondent

Anonymised Parties

A Citizen

An Insurance Company

Representatives

Mother of Complainant

Respondent Legal Dept & Deirdre O'Halloran , Solicitor of Corrigan & Corrigan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00026314-001

15/01/2019

The Complainant , acting via her Mother, has a recognised Disability. She has a serious Hearing difficulty. In May 2018 she purchased specialist Hearing Aids ans ought to insure them with the Respondent Insurance Company. The Respondent declined to offer the requested insurance cover. The Complainant alleged that this was a Discriminatory action - prohibited behaviour, as specified by the Equal Status Act,2000.

Leaving aside the Time limits issue discussed above as an Opening Issue the Respondent maintained that the issue of whether or not to accept an Insurance Risk is covered by Section 5 (2) (d) of the Equal Status Act, 2000.   This Section provides that an action is not Discriminatory if it complies with this sub Section.

-for convenience Sub Section 5 (2) (d) is quoted below from the Act.

(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 Respondent carried out an Actuarial & Underwriting exercise in 2005 and as a result decided not to offer Insurance cover under the All Risk or Optional Cover section of their Policies for Hearing Aids.

This decision was kept under constant review but to date the view of the Underwriters remains that it does not represent a viable product for the Respondent to bring to the market. As such they declined to offer cover to the Complainant.

Oral evidence, in support of a detailed Written submission, was given by the Respondent Home Underwriter and at the invitation of the Adjudicator by a supplemental written submission on this point.

In summary it was a proper commercial underwriting decision, as provided for in Section 5(2)(d) and could not be in any be deemed Discriminatory or Contrary to the Equal Status Act,2000.

5:1    

Legal Discussion

Having considered all the evidence both Written and Oral and in particular the supplementary correspondence post the Hearing from the Respondent Underwriter it was clear that, on first examination, this was a commercial decision based on an Underwriting view of the market.

There was absolutely no evidence, again on first examination, that any discriminatory motives, vis a via the Disablement of the Complainant, applied. The exclusion of Hearing Aids also applied to a wide range of other articles such as Contact lenses, mobile phones and sports equipment.

However, in a case of Discrimination one of the key Legal issues is the question of the Burden of Proof. First examinations can not always be relied upon.

In this case this would require the Complainant to establish, at the very least, a Prima Facia, inference that the Respondent, by their refusal to offer Insurance cover, was acting in a discriminatory fashion towards a Complainant with a Disability.  

Taking guidance from Meenan in Employment Law – Round Hall 2014 Edition it is well recognised in the case law that direct evidence of discrimination is infrequent and therefore the rules on burden of proof have to take account of this in providing for effective judicial remedies for aggrieved claimants. Reliance has to be placed here on the Employment Equality Act,1998 for good precedents.

The issue of the evidential requirements for both Complainants and Respondents has been carefully considered and promulgated in the case law of the Tribunal and the Labour Court. The starting point is the decision of the Labour Court in Southern Health Board v Mitchell [2001]ELR 201 which still remains the leading decision on the shifting of the burden of proof. The Labour Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the adjudicator at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthyEDA/21/2008 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The argument that mere membership of a protected class , in this case the Hearing impaired cohort and specific treatment was sufficient for a Complainant to meet his or burden of proof in terms of Section 85 (a) of the employment Equality Act,1998 was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Employment Equality Act 1998 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.”

Therefore, the evidence adduced by the Complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment.

In this case the primary evidential requirement is to establish a clear inference that the Non-Covering of Hearing Aids was a sufficiently strong Discrimination decision to effectively over rule the exemptions in Section 5(2) (d) of the Equal Status Act, 2000

Regarding Section 5(2) (d) namely

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,

I felt that the post Hearing letter of on or about the 23rd September from the Lead Underwriter set out the clear commercial case for the Respondent to avail of Section 5(2)(d)

The late September letter was commented upon by the Complainant as being rather long on unsupported Underwriting assumptions and lacking in the requisite statistical and actuarial details of research and precedents.

To an extent this criticism was warranted.

However, in balance, at the Oral Hearing,the author came across as a competent professional Underwriter who had approached the issue from a Commercial perspective. While the initial decision had been taken in 2005 , prior to his time, it had been kept under review and he had looked at this issue again in the light of this case.

There was an acknowledgement that Insurance cover could, in theory have been offered by the Respondent but that it would have been at unsupportable premium levels and non-competitive in comparison to other Insurers in the market who were offering cover. It was noted that the Complainant had been able, in his belief, to secure cover from a Competitor.

Noting the Burden of Proof arguments above I could not see any credible evidence of direct or indirect Discrimination by the Respondent against the Hearing Disablement of the Complainant ,per say, that would invalidate Section 5(2) (d).

5:2     Final Conclusion

This case revolves around whether an Underwriting decision was Discriminatory. Discrimination is commonly accepted to be actions that negatively impact on one class or party in comparison to another Party.

From a careful review of all the evidence, both oral and written, it was clear that the Respondent could have offered cover for Hearing Aids but on commercial terms such as to make the offer prohibitive and effectively meaningless.

Not offering cover was a Commercial decision– the direct evidence of the Underwriter pointed to a decision that had been carefully considered and reviewed from an Underwriting perspective over the Summer particularly when the FSPO process was being mooted.

I had to come to the conclusion that Section5(2)(d) applied and find in favour of the Respondent.

Act

Complaint/Dispute Reference No.

Summer decision /Please refer to Section Five above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00026314-001

Complaint is not upheld. Respondent can properly rely on the provisions of Section 5(2)(d) of the Equal Status Act,2000.