3 | What does the law say? • issues of effectiveness, efficiency, and convenience in performing an activity or completing a transaction and the cost of not imposing the discriminatory requirement or substituting another requirement.27 In assessing reasonableness, the courts have also outlined the following principles:28 • • • • The Discrimination Acts make discrimination on the basis of a protected attribute unlawful in relation to the provision of goods, services and facilities, unless an exemption or exception applies.35 This includes services relating to insurance.36 The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other.29 Unless an exemption or exception applies, insurers must not discriminate on the basis of protected • by refusing to supply services The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience.30 • in the terms and conditions on which services are provided, or • in the manner in which their services are provided.37 The test is reasonableness, not correctness, or ‘whether the alleged discriminator could have made a “better” or “more informed decision”’.31 A decision may not be reasonable even if it has a ‘logical and understandable basis’.32 Under the SDA, DDA and ADA, once the customer alleging discrimination shows that a requirement disadvantages people with the relevant attribute, the insurer will have the burden of proving that the requirement is reasonable in the circumstances.33 However, under the RDA, the customer alleging discrimination must also show the requirement is not reasonable in the circumstances.34 14 3.2 When is discrimination unlawful? attributes: Discrimination occurs at the time of the discriminatory act. In insurance, this might be the refusal to provide cover, an offer of a policy on unreasonable terms, or a refusal to pay a claim.38 These matters are often interconnected, as a claim might be refused based on an exclusion contained within the terms and conditions of a policy. However, the date of the insurance contract or policy may not always be decisive. For example, if a customer’s contract predates the Discrimination Acts and contains a discriminatory exclusion, and the insurer now refuses a customer’s claim based on that clause, the refusal may be covered by the Acts. It would then have to be determined whether the refusal was in breach of the Discrimination Acts, but the claim could not necessarily be defeated simply because the contract predates that legislation.