ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010141
Appeared in Person
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 04/09/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. I held a hearing in the case on 4 September 2018.
The case arose from concerns expressed by the complainant that she had discriminated against by the respondent on grounds of disability contrary to the Acts in terms of Section 3(1) (a), 3(1) (c) 3(2) (j) contrary to Section 5 (1) of the Acts in that she was treated less favourably when she sought a quote for car Insurance in April 2017. The Complainant also raised concerns at the way her complaint under the Equal Status Acts 2000- 2015 was responded to by the Respondent.
This case was first listed for Dublin and was postponed there. It was later reassigned to the Southern area to reflect the Complainants area of residence. An extensive period passed before the case came for hearing as the complainant had furnished several medical reports citing her unavailability for hearing due to a medical condition.
Both parties relied on written and oral submissions at hearing. Both parties submitted documentation post hearing at the Adjudicators request.
Summary of Complainant’s Case:
The Complainant has lived with the condition Multiple Sclerosis since approximately 1987. She submitted her complaint in respect of discrimination in provision of car insurance services on 23 August 2017, having completed the ES1 procedure on 13 July 2017.
In her written statement, the complainant outlined that on 13 April 2017 she rang the Respondent for a quote for car insurance. She spoke to Ms A who followed up with her on two occasions that day. The Complainant informed her that she was a driver in possession of disability only to be told by Ms A that a medical examination would have to preface the granting of the Policy. The Complainant had always undertaken a medical examination in relation to her Driving licence renewals and asserted that this was interchangeable with the Insurance stated pre-requisites. Ms A did not accept this and insisted that a quote from the company could only follow a medical examination. The complainant took issue with this submitting that Ms A had not carried a Neurologist qualification and feared that her confidential medical information would end up with a non-medical cohort. She contended that this was an excessive request given her pre-existent Licensing Authority endorsement. The Complainant requested written confirmation of her exclusion from an Insurance quote which did not follow as agreed. The complainant affirmed that she had driven with hand controls in her vehicle since 1991.
The Complainant submitted that she had been asked whether hand controls had not modified the appearance of the car? She submitted that she had answered truthfully in stating No. She also answered in the negative in relation to the question of whether she or any person who may drive have a physical or medical condition that impairs driving ability. At this stage she had held a licence for 37 years and had never had an accident. The Complainant outlined that she was very demeaned by the questions which she viewed were inappropriate as she was known in the Insurance office where she visited on several occasions yearly to pay for other aspects of Insurance.
On 19 April 2017, the complainant attended the Respondent office with her husband, requested the quote and received a copy of the quote and a medical form for completion.
The Complainant was asked for
1 Medical history which she contended was irrelevant as drivers who do not possess a disability were not asked this.
2 whether the driver with a disability is normal or abnormal in relation to physical conditions.
3 Examining Physician to declare “any relevant defects not mentioned”
4 Whether the patient is fit to drive a motor vehicle.
The Complainant objected to the word “patient” being included on the Medical form as being discriminatory, suggestive of impairment and less able bodied than another. She distinguished the form as less appropriate than that of the Driving Licencing Authority. She had held 10-year licence since 2013 and had no problems with her present state of health
The Complainant outlined the 19 questions posed to the CEO of the Respondent Insurance Company which she believes were not addressed. She expressed a profound sense of disappointment at this incomplete process. She said she believed that she had been ignored where the Respondent had demonstrated a prejudiced attitude towards a category of persons, drivers with disabilities.
The Complainant also requested documents under Data Protection Legislation and the complainant took issue with the parts of the responses which were redacted .She contended that the Respondent displayed a marked attitude by the Respondent towards disabled drivers “ whereby they are openly “ categorised “ as having an impaired driving ability “ She contended that the Insurance company had recorded her as being untruthful, which she disputed . The Complainant contended that the form she was advised to present to her Medical Practitioner for completion was loaded with insulting, demeaning and discriminatory language. The Complainant submitted a copy of the Driving Licence Medical report form for information purposes.
In concluding, the complainant submitted that the Insurance Company is permitted to ask if she was fit to drive but not entitled to ask the extent of the questions outlined in the Medical Report form. The Complainant accepted that she obtained a quote of €639 but did not accept this as it was predicated on the provision of a medical report. She submitted that she had subsequently received Insurance from a different provider without recourse to a medical report.
When asked what redress she sought in the event of her complaint succeeding, the complainant submitted that she sought an apology, a revision on how the Insurance Company gathered information and would appreciate if customer service issues did not become discriminatory actions.
The Complainant submitted that she held a firm view that her drivers’ licence ought to have been enough to secure car Insurance. She believed that the treatment she received from the company amounted to discrimination contrary to the spirit of equality legislation and was distressed by this. She reflected that it was reminiscent of Old Ireland. She had a right to process her complaint under equality legislation and observed that this right had been fettered by the respondent.she believed she had been victimised as a result .
Summary of Respondent’s Case:
The Respondent is a large Insurance Company and disputed that discrimination on grounds of disability had been directed at the complainant.
The respondent confirmed that they had received the ES1 form in June 2017 and they believed that they had engaged respectfully in the process by treating it in accordance with the Financial Services Obligation/ Central bank regulatory code rules. The matter was investigated by a Team Leader at the Underwriting Department which concluded on 12 July 2017 in letter format. the Respondent was unable to take the matter further and stated:
“When a person seeks a quotation for motor insurance from the company we ask a number of underwriting questions. These questions are used to assess the risk being proposed, and the suitability of the Policy for your individual circumstances. the questions in respect of medical conditions are for confirming that the proposer is currently fit to drive. If a person discloses a medical condition that may affect their ability to drive, we would require them to have a medical certificate completed by their doctor. As certain medical conditions can cause a person’s health to deteriorate over time, the medical information declared to the licensing authority to obtain driving licence at an earlier date may have changed. As this is the case, we must obtain a medical certificate with the most up to date information immediately prior to commencement of a motor insurance policy ……”
The Response went on to state that a declaration of a medical condition does not increase the premium charged for motor insurance. Requesting medical information was explained standard operating mechanism deemed necessary by the Underwriter for the Insurance company.
The Respondent submitted a written transcript of 3 phone calls with Ms A on 13 April 2017 @09.30 hrs,14.30 and 15.50 hrs. The Respondent also submitted links to three documents referred to during the hearing. Two from the Road Safety Authority Where Multiple Sclerosis is referred to as a neurological condition and the FBD complaints procedure.
The Respondent outlined at hearing that a Driver Licence is not medical currency for Insurance purposes and past medical history inquiry is universally requested from everyone who discloses a medical condition . The form issued is a standard form and written with a Medical Practitioner language in mind as the form is directed to that avenue and not a lay person.
The Respondent believed that the Company had acted reasonably as there was no intention of applying an additional loading to cover a disability. The core point arose when having been asked whether the car had been modified? the complainant had answered no, only to later amend her response by disclosure of the addition of hand controls. This action caused some doubt for the company and they moved to protect their commercial interests by seeking medical information.
The Respondent denied victimisation and understood that the Company response addressed the points listed on the ES1 form. The Respondent was happy to apologise for the breakdown in communication where the ES1 questions were subsumed into the complaints procedure and agreed that this process could have been improved but this action had not constituted discrimination. The Respondent concluded by reaffirming that the complainant could have actioned the complaints procedure and was offered a further appeal to the ombudsman
Findings and Conclusions:
The matters referred for Investigation surrounds the concept of Indirect Discrimination and victimisation provided for in Section 3(1) (c) and 3(2) (j) of the Act:
Where an apparently neutral provision would put a person referred to in any paragraph of Section 3(2) at a 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
In reaching my decision in this case, I have considered all the submissions, both oral and written made by the parties. I have also had regard for the supplementary documents submitted post hearing at my request. The Complainant referred to two issues in her complaint to WRC. The first that of Indirect Discrimination on disability was clearly marked on the complaint form, the second covered her submitted procedural dissatisfaction following the submission of the ES1 which was delineated on her written document attached to the complaint form. Both issues have formed part of my investigation.
The Complainant has submitted that during exploring a quote for car insurance that she disclosed her disability and the pre-existence of hand controls in her car. She contended that this placed her in an immediate vulnerable situation as she was faced with having to complete a medical report prior to acceptance. She took issue with the approach adopted by the Insurance company as she considered that her pre-authorised Driving licence rendered her fit to drive without supplementary medical investigations. She expressed a strong view that the only question that she could rightfully be asked was whether she, the applicant was “fit “to drive a motor vehicle.
I have considered the three transcript calls as submitted by the Respondent and responded to by the complainant. I noted that in the early stages of the call, the complainant was advised of her d duty to disclose any previous medical history. She then answered that no modifications had been applied to either the mechanics or appearance of the car. Considering her later disclosure of her disability, I found a clear inconsistency here on the complainant’s part. I noted that the complainant did not object to the request to provide documentation on the installation of the hand controls fitted to the vehicle.
I was struck by the complainant’s reluctance to engage in the request for medical evidence and her total reliance on the supremacy of the Driving Licence Authority in this regard. I note that the complainant confirmed her medical condition as a disability during the phone call on 13 April ,2017 and soon after expressed her vulnerability to feeling singled out for specific medical scrutiny. I would like to have heard from Ms A in this case as I note that the complainant was invited to make a complaint to the company in the first instance before the complainant indicated that the matter had entered the equality domain.
The Complainant exhibited an unpopulated template of the Respondent Medical Certificate for Motor Insurance which delineated past medical history, present state of health and details of physical examination.
All personal data retained by FBD Insurance plc is in strict confidence and use for providing and servicing insurance products you have purchased from us. The entire form is for the sole completion of the family doctor and incorporates the question “In your opinion, is the patient fit to drive a motor vehicle?”
She exhibited an unpopulated template of a Driving Licence medical report form from NDLD, the national authority, which comprised two parts.
Part 1 required completion of name, PPS number, whether licence had been revoked, ceased. Importantly for my investigation, I noted an emboldened section
I declare that to the best of my knowledge the above information is true, and I have made the doctor completing this medical report form required under the Road Traffic Acts aware of any medical conditions, drugs and medications that I use
Part 2, to be completed by a Medical Practitioner asks for responses on whether
Applicant needs corrective lenses for driving
Applicant has a physical disability requiring adaptation on vehicles to drive
Applicant has a limb prosthesis
Applicant has epilepsy
Applicant has restrictions
In this case, the complainant has argued that she experienced discrimination in having a disproportionate request for a Medical report directed against her when the National Driving Licence centre had validated her for driving and this ought to have been enough.
The Respondent always disputed this by saying that, this was a commercial transaction based on Road Safety Authority Guidelines where the disclosure of Multiple Sclerosis equated with a Neurological condition governed by specific guidelines which served as a requirement for the company to seek medical validation of the complainant’s condition.
The Complainant did not exhibit a copy of her driving licence. She submitted that it was a 10-year version dated 2013. It is clear to me that this process is a separate and distinct process governed by the statutory framework of the Road Traffic Acts and cannot be viewed as interchangeable with the medical clearance for driving for insurance purposes.
I found that the Complainant expressed a high level of anger regarding the language printed on the form and reflected that it was reminiscent of all older less kind Ireland. I fully accept that the complainant experienced a clear vulnerability in her interaction with the company which was not remedied during her face to face encounter on April 19, 2017. On this day, I accept she handled the quote which was covered by the medical report serving as a requisite to the transaction. She decided against accepting this offer and found Insurance elsewhere.
I am satisfied that the complainant is covered by a disability ground for the purposes of the Act. The complainant pointed to the provision of the Insurance company medical form as an apparently neutral provision that placed her at a disadvantage compared to persons without a disability. The Respondent disputed this saying that the Medical Form was not to be completed by the complainant herself but by her Doctor. This form was universally offered to customers who disclose a medical condition when requested to. The form had no bearing on a variation in the cost of insurance and was a separate and distinct process to that of the national driving authority requirements and were not interchangeable. The form served as a communication from one Doctor top another Doctor and was appropriate and necessary arising from RSA Guidelines for a Neurological condition such as expressed by the complainant.
Section 38 (A)(1) of the Act outlines the burden of proof necessary in this case. I have found that the complainant has not demonstrate that this provision of the medical form has placed her at a disadvantage compared with other persons. I must accept the Respondent argument that the provision of the medical form was in response to the complainant’s disclosure of a medical condition and this form is universally applied to all who disclose this. I have also accepted that the Respondent was covered by Section 5(1) (d) of the Act where treatment is affected by relevant underwriting and commercial factors which were separate and distinct from the requirements of the national licencing authority on which the complainant relied.
S.5(1) (d) 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 affected 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,
(ii) is reasonable having regard to the data or other relevant factors,
I found the Respondent submission on Section 5(d) (1) (ii) reasonable in this regard. The claim for indirect discrimination has not succeeded.
Claim of Victimisation:
I now move to the second leg of the complaint, that of the broadening of the procedural pathway of the complaint lodged by way of ES1.
The Complainant submitted her ES1 form to the CEO at the Respondent Office dated 11 June 2017. This was a clearly worded document which was prefaced by
Equal Status Acts 2000-2015 Notification
This document warns of a possible legal claim.
The Complainant submitted a detailed listing of questions and requests for information. The Respondent responded on 16 June and stated:
Thank you for your written complaint received on 13 June about our requirement for you to provide us with a medical certificate ……
I wish to advise you that my investigation will be carried out in accordance with chapter 10.9 of the Central banks Consumer Protection code 2012 which states that we must provide
1 written update on the progress of the investigation no later than 20 days
2 Endeavour to conclude our investigation an advice on the outcome within 40 days.
The Complainant did not put the record straight with the Respondent at this point. I appreciate that she is a Lay Litigant, however a clear clarification at this point that that the information she sought was required under the Equality Legislation and not Financial Services codes may have short-circuited the matter considerably.
I could not establish any cogent reason why the complainants ES1 form was met by a Corporate response not reflective of the provisions of the Equal Status Acts. It was crystal clear to me that the complainant had taken time to submit a notification that she believed that she had been discriminated against and awaited the Respondents response to that claim.
For information purposes the Equal Status Acts 2000-2015 have evolved from European Community Directives on Goods and Services. The WRC had produced an excellent guide to these Acts for both the complainant and the Respondent in September 2017 which has just eclipsed the date of this complaint. However, the ES1 and responding document ES2 have been in existence for many years before this.
I have reflected on both parties’ submissions on this aspect of the case. It was clear to me that despite the complainant’s long absence from this case through illness, she carried a clear trauma regarding her complaint sent to the Respondent in June 2017. In this she had clearly outlined her intention that if she was not happy with the response she would consider a complaint to the WRC. She had equally made this pathway known to Ms A on the first day of quotation in April 2017.
The Respondent was at a loss to explain how a complaint earmarked for the Respondent CEO had been delegated to Team Leader at the Underwriting Department. Neither party attended the hearing and the Respondent was unclear of any Equality Policy at the Company. The outcome of the complaint did not address the allegation of discrimination and permitted an appeal to the Financial Ombudsman. I have drawn inferences from this.
As Judy Walsh stated in her book on the Acts , persons who bring , or assist in discrimination law proceedings are afforded some protection from relator actions under Section 3(2) (j) .The prime facie test is outlined in Collins V Public House DEC -S2003-071 where an applicant must show that she applied in good faith for redress under the Act and indicated an intention to do so , in satisfying section 3(2)(j) .She was subjected to specific acts of treatment by the Respondent after she did so and this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action outlined above .
In the instant case, the ES1 form satisfies the first leg of the test. The Respondent did not address her questions and did not include her in any investigation. Instead, it seems to me that the complainant’s efforts to resolve the situation under ES1 were procedurally contained when the Respondent by passed this process and activated a corporate services complaints procedure not activated by the complainant. I have found that this intensified the complainant’s distress regarding her experience as a person living with a disability.
I was very struck by the complainant’s oral submission on the impact that her experiences had had on her at hearing. While I accept these were prompted by the medical form, I have found that her trauma intensified following her submission of the ES1. She spoke about not mattering to the company as they pressed ahead with an alternative complaint’s procedure. I found this to be a profound moment in the case and one I have reflected on considerably.
Living with a disability is a known challenge for all people. It is important that complaints on provision of goods and services are honoured procedurally and not be permitted to diversify beyond the stated direction of the complaint which may in turn disadvantage complainants. In a previous Equality Tribunal finding in Cantwell V Giles and Co Tralee DEC -S 2007-010, the Equality Officer found that the Respondents response of a letter threatening Defamation to a complainant warranted an award of compensation of €4,000. This was in response to an overt proclamation. In the instant case, I found the procedural containment was very subtle but very profound, the effect endured much later than 12 July 2017, the date the investigation concluded.
I have found that the complainant was victimised in response to her notification of the ES1 form and attachments on 11 June 2017, I find this aspect of the complaint to be well founded.
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I find that the complainant has failed to establish a prima facie case of discrimination in terms of Section 3(1) (a) ,3 (1) (c) and Section 5 (1) of the Equal Status Acts
I find that the Complainant has established that she experienced victimisations provided in Section 3(2) (j) of the, Act following her submission of the ES1 form to the Respondent on 11 June 2017. The Respondent has not rebutted this.
I order the Respondent to pay an award of €5,000 in compensation to the complainant in respect of the distress caused by this action. This ward is not subject to Revenue reductions.
In addition, I direct the Respondent to offer Equality Training in provision of Goods and Services to all designated Complaints Officers to distinguish the parameters of Equality Legislation from Financial Services Codes of Practice.
Workplace Relations Commission Adjudication Officer: Patsy Doyle