On 31 October 2012, the Department of Justice and Equality issued a press release, Scheme of a proposed Bill (the Equal Status (Amendment) Bill) and consumer information note in relation to proposed gender equality measures for insurance. The Scheme sets out certain intended changes to the Equal Status Act 2000, aiming to reflect the decision of the Court of Justice of the European Union in the Test-Achats case (Case C- 236/09 Association belge des Consommateurs Test-Achats ASBL, 1 March 2011) that taking the gender of an insured individual into account as a risk factor in insurance contracts constitutes unlawful discrimination.
The key change is that, from 21 December 2012, it will no longer be permitted to offer differing premiums and/or benefits to policyholders based on gender. However, according to guidance issued by the European Commission, this will only be the case for ‘new’ contracts (a concept which has been the subject of much European stakeholder commentary since the Test-Achats decision). “New contracts” is not defined in the Scheme of the proposed Bill. However, on its ordinary meaning, it would include fresh insurance contracts, renewals and certain mid-term adjustments.
The two key types of insurance which will be affected by the changes are life assurance and motor insurance, where gender has traditionally been a heavily influential factor in the risk assessment process. Changes proposed to the Equal Status Act 2000 include (1) exemption of life and motor insurance contracts concluded prior to 21 December 2012 from the rule against gender discrimination, (2) confirmation that mid term adjustments in relation to motor insurance will not constitute ‘new’ contracts for the purpose of the new rules (life assurance is not mentioned in this regard) and (3) confirmation that it will not be prohibited for insurers to collect, store and use gender-centric information if it is genuinely required for (a) reserving and internal pricing, (b) reinsurance pricing and (c) life and health underwriting.
The draft Bill is subject to ongoing consultation with appropriate Governmental departments and the Attorney General, prior to being finalised. In light of the imminent 21 December 2012 deadline, it is to be expected that the proposed Bill will be progressed speedily (although the information published by the Department of Justice and Equality does not indicate a specific timeframe).