Banks and financial services

New guidance

The Equality Act came into force on 1 October 2010. The information on this page reflects changes to the law.

Equality law applies to financial services providers, including banks, insurance companies, building societies, credit card companies, loan companies, hire purchase companies and credit unions.

Possible issues

Businesses like this must not discriminate unlawfully because of a protected characteristic when giving or refusing you access to financial services such as bank accounts, overdrafts, credit and debit cards, loans, mortgages and hire purchase agreements.

If a business provides insurance, pensions or annuities, there are some differences in relation to disability, sex, gender reassignment, and pregnancy and maternity. If the business can meet a number of strict conditions, which are explained in detail in What equality law means for your membership of an association, it may be possible for them to take these protected characteristics into account when making decisions, for example when setting premiums and benefits.

How you are treated when you use or want to use the business’s services

First, you can use the Core guidance to make sure you know what equality law says businesses providing goods, facilities or services to the public must do.

Also look at:

Delivering services: staff, places, advertisements and marketing, written materials, websites, telephone services and call centres.

Remember, it doesn’t matter whether the service is free, for example, when a member of staff gives information to you, or whether it must be paid for – it will still be covered by equality law.

It is important for financial services providers to avoid making assumptions about people that may lead to discrimination because of a protected characteristic.

For example:

  • A mortgage provider only gives mortgages to people who work full time, assuming that part-time workers won’t be reliable at making payments. Although this condition would apply to both sexes, it is likely to adversely affect more women than men since more women work part time. The mortgage provider would have to objectively justify the condition to avoid its being indirect discrimination. The right sort of approach is to look at the person’s income or employment history, not their full- or part-time working status.
  • A disabled person who is a long-term patient in a psychiatric hospital wishes to open a bank account. The bank incorrectly assumes that because they are is in a hospital they cannot manage their affairs. It refuses to open an account unless it is provided with an enduring power of attorney. The bank continues with its refusal despite being provided with good evidence that the person has full capacity to manage her own affairs. This is the wrong approach. It is probably direct discrimination because of disability. A better approach is to accept the evidence that has been given.
  • A transsexual woman is questioned very closely with extra security questions whenever she uses telephone banking services because the pitch of her voice is low. This would probably count as providing a service on worse terms. A better approach would be for the bank to train its staff not to make judgments about the identity of customers based on what they sound like.
  • It is important for a financial services provider to avoid unlawful discrimination in the way in which records are kept and changes are made to people’s personal information.

For example:

A transsexual woman is asked for a Gender Recognition Certificate (GRC) when she supplies supporting documentation of her new name and asks to have her records changed. It is not necessary for her to have a GRC to have the protected characteristic of gender reassignment. If the bank asks her for more proof than it would ask someone else who changed their name for another reason, this may amount to direct discrimination.

Financial services providers need to think particularly about different communication needs that disabled people may have, and how to combine meeting these needs with the requirement of confidentiality. Depending on the circumstances, meeting people’s needs in this way may be a reasonable adjustment. You can read more about reasonable adjustments to remove barriers for disabled people.

For example:

  • A bank has a policy not to accept calls from customers through a third party. This could amount to indirect discrimination against a disabled person with a learning disability who may use a support worker to call the bank. The right sort of approach is to make sure the customer’s records show anyone who deals with them that they may be communicating using a support worker. This is also likely to be a reasonable adjustment.
  • A credit union provides information on an audio CD about its services. A customer with a visual impairment can use the CD at home to decide whether to open an account. This is an example of the right sort of approach, where the credit union is making a reasonable adjustment.
  • A person with a hearing impairment who lip-reads as their main form of communication wants a secured loan from a bank. In the initial stages, it might be reasonable for the bank to communicate with them by providing printed literature or information displayed on a computer screen. However, before a secured loan agreement is signed, this particular bank usually gives a borrower an oral explanation of its contents to make sure that the customer understands the implications of what they are agreeing to. At that stage it is likely to be the right thing for the bank to arrange for a qualified lip-speaker to be present (with the customer’s consent) so that any complex aspects of the agreement can be fully explained and communicated.
  • An independent financial adviser insists that a disabled person with a learning disability brings a relative with them to an appointment to carry out a financial review, despite this being against the disabled person’s wishes. This may result in a breach of confidentiality for the disabled person, and would therefore probably be providing a service on worse terms. A better approach may be for the financial adviser to find an independent advocacy service to support them, which may also (depending on the circumstances) be a reasonable adjustment.

Insurance

Insurance and similar financial products involving the assessment of risk include annuities, life insurance, buildings and contents insurance, accident insurance, travel insurance, payment protection insurance, mortgage protection insurance, health insurance and critical illness cover.

In general, an insurance provider must not discriminate against you because of a protected characteristic in relation to providing you with insurance products or in the terms of the products themselves, for example, premiums and benefits.

Ways in which an insurance provider could be in breach of equality law by discriminating because of a protected characteristic include:

  • Charging a higher premium to people with a particular protected characteristic or giving them lower benefits or refusing them insurance altogether, either because of the protected characteristic or because they apply a condition to the policy which has a worse impact on people with that protected characteristic and they cannot objectively justify this.

Some exceptions may apply to disability, sex, gender reassignment and pregnancy and maternity (see below). No exceptions apply to the other protected characteristics: race, religion or belief, and sexual orientation.

For example: 

An insurance company always refuses insurance to people who give a caravant site as their address. A Gypsy applies to insure their caravan which is kept on one of these sites. The insurer refuses the policy. Unless the insurer can objectively justify this decision, this may be indirect discrimination because of race.

  • Asking some people to produce more evidence or a different type of evidence to support an insurance claim, if this is because of a protected characteristic. 

For example:

An insurance company asks a long-term UK resident who has a UK driving licence but was born outside the UK (in other words, they have a different national origin) is asked for additional proof of identity when they make a claim on their car insurance, whereas people who were born in the UK are only asked for their driving licence.

If an insurance company insisted that a man applying for life insurance takes an HIV test before they will give him life insurance because his application form discloses that he is gay by referring to his male partner, this would almost certainly be direct discrimination because of sexual orientation.

However, it may be necessary to ask for more evidence relating to a protected characteristic where this is relevant to the claim, for example, a claim against health insurance could require medical evidence.

Existing contracts

In relation to insurance business, contracts entered into before 1 October 2010 do not have to be changed unless they are renewed or reviewed after that date (other than a general review of pricing structure). If they are renewed or reviewed, they may need to be brought into line with the Equality Act 2010 so that they do not discriminate because of a protected characteristic except if permitted by exceptions for disability, sex, gender reassignment, or pregnancy and maternity.

For example: 

An existing life insurance policy which was taken out in 1989, and has not been subsequently renewed or reviewed, continues to be lawful and does not have to be altered to comply with equality law. If it is renewed after 1 October 2010, the policy must be altered if it would otherwise discriminate because of any of the protected characteristics except in line with the exceptions for disability, sex, gender reassignment and pregnancy or maternity listed below.

Taking certain protected characteristics into account

It may sometimes be possible for an insurance business provider to refuse cover to someone or offer cover on different terms because of disability, sex, gender reassignment, or pregnancy and maternity.

If an insurance business provider wants to do this, they must be able to show that there is a difference in risk associated with one of these protected characteristics.

Slightly different tests apply for different protected characteristics.

Disability

Providers of ‘insurance business’ can only justify treating disabled people (including people with a past disability) differently when providing them with insurance if:

  • the different treatment is by reference to relevant information from a source on which it is reasonable for them to rely, and
  • it is reasonable for them to treat the person differently.

This means it is important for the insurance business provider to have relevant information from a reliable source when making decisions about offering insurance services to a disabled person. Using untested assumptions, stereotypes or generalisations can lead to unlawful discrimination.

For example: 

Someone who was previously a disabled person because of a mental health condition is charged a higher premium for travel insurance because of a blanket exclusion policy, even though they have not had any recurrence of their condition for many years. The insurer does not have any information that the person’s past condition involves a particular risk now. It is unlikely the insurer will be able to show that the different treatment is based on relevant information from a source on which it is reasonable to rely, and that it is reasonable to treat the person differently because of their past disability. Unless it can demonstrate this, the insurer must not charge higher premiums or refuse them insurance altogether.

A disabled person being treated for cancer applies for a life insurance policy. The insurance provider refuses the application on the basis of a medical report from the person’s doctor, which makes it clear that the prognosis is as yet far from certain. This decision is based on relevant information from a source on which it is likely to be reasonable to rely and it is also likely to be reasonable to treat the disabled person differently because of it.

Sex, gender reassignment, pregnancy and maternity

For insurance business contracts entered into before 6 April 2008, an insurance provider can justify treating:

  • men and women
  • transsexual people 
  • women because of their pregnancy whether that is current or past
  • women who have given birth in the last 26 weeks
  • differently in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk if:
  • the different treatment is done by reference to actuarial or other data on which it is reasonable for the business to rely, and
  • it is reasonable to treat people differently.

For contracts of insurance or related financial services entered into on or after 6 April 2008, including new contracts for which they are assessing the risk now, the different treatment because of a person’s sex, gender reassignment, pregnancy, or having given birth in the last 26 weeks is only allowed in relation to premiums and benefits if:

  • the use of that protected characteristic as a factor in the assessment of risk is based on relevant and accurate data
  • in full or summary form, the data is compiled, published and regularly updated by the insurance industry in line with Treasury guidance, and
  • the differences in premiums or benefits are proportionate having regard to the data.

For example

Male drivers may be charged higher motor insurance premiums if the insurance industry had compiled, and published relevant and up-to-date data in line with Treasury guidance to show that sex is a factor in the assessment of the risk (in this case, that their use of the vehicle will lead to a claim or that their claims will be more expensive), and the difference in premium is proportionate to the extra risk.

Women may receive lower benefits from an annuity than a man paying the same premium if there is relevant and accurate data compiled, published and updated in line with Treasury guidance to show sex is a factor in the assessment of risk (in this case that the annuity will go on paying out for longer because a woman is likely to live longer than a man); the difference in benefits must be proportionate.

In relation to gender reassignment:

  • When using sex as a factor in assessing risk insurers must not treat transsexual people less favourably than others of their sex.
  • Previously case law has indicated that under European law, when someone is post operative, visually and practically indistinguishable from someone of their preferred gender they should be recognised in their acquired gender. How this principle applies in the context of insurance will need to be clarified by the courts.
  • Where a transsexual person has a Gender Recognition Certificate (GRC), the insurance industry should accept the gender disclosed at point of application is that stated in the GRC. 

For example:

An insurer provides an annuity to a transsexual woman with a Gender Recognition Certificate, paid at a higher rate than it does to a non transsexual woman, because they are taking into account the woman’s birth gender.  This is not likely to be legal, would not be legal as it fails to recognise her reassignment. 

For contracts entered into on or after 22 December 2008, the differences must not relate to a woman’s pregnancy (whether that is current or past) or to her having given birth within the previous 26 weeks.

Financial services provided by an employer as part of an employment package

If insurance or a group personal pension is provided by your employer as part of an employment package, your employer rather than the financial services provider must avoid unlawful discrimination because of a protected characteristic.

There are also particular rules about occupational pensions provided by employers, which are treated as part of an employee’s pay.

You can find more information about both these situations in the Equality and Human Rights Commission guide Your rights to equality at work: pay and benefits.

Age

The law does not yet require service providers not to discriminate against people because of their age or the age group they belong to, although service providers may wish to avoid harmful age discrimination as a matter of good practice.

Protection against harmful age discrimination outside the workplace including in relation to financial services may be introduced in the future.

If this happens, this guide will be updated.
 

More information

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