What is the test of reasonableness?

The Test of Reasonableness is key for good governance. Quite often the approach or action you should take depends on determining what is reasonable. Whether it’s what is a reasonable level of security for data under GDPR, or deciding whether some prejudice based exemptions apply under Freedom of Information, people must demonstrate a level of reasonableness that can survive a challenge. This means not only behaving in a way that takes account of the needs and capacity of the people you are dealing with, but being seen to do so.

What is the Test of Reasonableness?

So what is it to be reasonable? Well it depends on a number of factors. Ultimately you are looking for a balance, and the reasons for striking that balance, that most people would understand (even if they didn’t necessarily agree with it). This in turn depends on specific situations.

In general terms there are five factors to consider when deciding what’s reasonable:

The relative or balance of power between the individuals and organisations involved.
Whether people are fully informed and understand what they are being asked to do.
If your decision making progress is rigorous and consistently applied.
Is the activity unusual, highly complex, or otherwise difficult to do?
If there is an accessible remedy for people if things go wrong?

The test of reasonableness really comes into its own when it is applied well, as regulators tend to take a non-interventionist approach. If you can show you reached a reasonable, proportionate decision – even if, as noted above, others dislike or dispute the outcome – then you are likely to be on safe ground.

The Balance of Power

Generally speaking the more equal people are the less effort is needed to meet a test of reasonableness. For example, a simple transaction between two people needs less protection and care than someone purchasing products or services from a large company.

A great deal of consumer protection legislation exists to level the playing field between sellers and buyers. The GDPR is an example of this. As data becomes commoditised and very large companies collate vast quantities of information about people the GDPR seeks to give people some power by extending rights (such as the right to be informed).

It also requires organisations to take greater organisational and technical measures depending on their size and resources. This means that larger organisations need to allocate more resources to information security than larger ones.

As the saying goes: the large print giveth, the small print taketh away.

The Test of Reasonableness: Terms and Conditions Apply

Another example is the terms and conditions that people are compelled to agree to, which are often unreasonably lengthy as this video shows. Unfair contract clauses are unenforceable in the UK, and conversely absent clauses can be deemed to be present even if not written down.

You can see in this video how lengthy and potentially unreasonable the terms and conditions can be – and why we often don’t read them.

Are People Informed? Do They Understand?

Linked to the above is the concept of who you are dealing with. It will be reasonable, for example, to take extra care if you are dealing with children, older people, people with disabilities, or anyone whose capacity may be affected in the short term by physical, mental or emotional trauma.

Being up front and clear with people is important, but it won’t pass the test of reasonableness unless you take account of these factors. Quite often that will mean simplifying what you are explaining and giving people and opportunity to ask questions. A one size fits all approach almost never works except when working at a very high level. Quite often systems are designed by people who find it easy to navigate systems, and they neglect to think about who those systems will really be used by.

Is Your Decision Making Rigorous and Consistent?

Imagine you were awarding a tender. You would naturally need to be careful to make an objective decision and award the tender to the bidder who was demonstrably the best. Any perceived flaw in your tender process could leave it open to challenge. Therefore you need to take reasonable steps such as:

Ensuring all actual and potential conflicts of interests for those involved in the tender process are identified and managed;
Asking every bidder to provide the same quality and quantity of information;
Scoring bids against clear and well defined criteria.

Of course you don’t want your decision making to be overly complex or time consuming. What is reasonable will be linked to the size of the tender, and what it relates to.

Is This Complex or Difficult?

In general the more complex or difficult something is – for them, not you – the more care you should take to behave reasonably. This links closely to the concepts of the imbalance of power, and helping people understand, outlined above. The more potential pitfalls there are the greater care you must take to behave reasonably. And to be seen to do so, too. If something is complex, can it be broken down? If something is difficult for people is that because your systems are designed for your convenience?

For example, some media companies only allow people to cancel contracts and subscriptions by phone. This may be so they can pressure people to change their minds. That doesn’t seem very fair or reasonable, and in any event we all know how hard it can be for people to get through to ‘customer services’ at the best of times. Conversely if people can sign up for a product or service at the press of a button it ought to be that easy to end that relationship.

The Test of Reasonableness: What Happens if Things Go Wrong?

This really is where it all comes together, as you must give people a reasonable and proportionate (and speedy) right of redress. Reasonable includes easy. Think about the best customer service you have had. Was it with people who could take action there and then to resolve your concerns? Or was it with dealing with people who couldn’t care less, whom you got to after a tortuous series of automated menus? We have encouraged people to undertake a mystery shop of their own organisation to see how well they do on this score.

In general it is reasonable to treat people like people. At its core that is largely what good governance, and the test of reasonableness, is about.

You can expect to see negative publicity and reviews if you behave in a manner that people consider unreasonable. No-one expects perfection, and mistakes happen. However, when you create barriers for people you can expect people to take to social media to express their frustration. Once that happens you lose control.

Applying the test of reasonableness to your activities is a way of managing risks and building good relationships. This will pay dividends in the longer term. Like all good governance activity it can be done speedily and efficiently. And it will save time and resources in the longer term. What is reasonable in any given situation is down to you. You know something is reasonable if it can withstand scrutiny and challenge without costing you time, money or your reputation.

What is the test of reasonableness?