Don't let a bald pate throw you

December 8, 2006

Harriet Swain says employers must tread carefully as the new discrimination regulations kick in, especially when it comes to making assumptions about people's age based solely on what they look like

What you want in your university is a vibrant, dynamic body of staff and students. In other words, no wrinklies. On the other hand, you don't want infants either - it's strictly over-18s in your seminar groups.

Maybe so, but you've still got to watch your language. Not only are pejorative words such as "wrinklies" and "infants" totally unacceptable but you'll also need to watch out for euphemisms, such as "vibrant" or "experienced", that favour a particular age group.

The Employment Equality (Age) Regulations 2006, which came into force on October 1, prohibit discrimination against anyone in employment, education and training on grounds of age. Under the legislation, employers are required to set a default retirement age, such as the national retirement age of 65, and to consider requests from staff to work beyond retirement age. It also means treating students the same whatever their age.

You'll have to watch other kinds of language, too. Jim Soulsby, development officer at the National Institute of Adult and Continuing Education, says you must be careful about using the word "mature". Universities will no longer be able to say they will consider mature applicants without traditional qualifications because this may discriminate against young applicants who don't have these qualifications either. They, too, need to be given the option of the same non-traditional route.

This is the case no matter how young they are. Geraldine Swanton, senior associate in the education team at solicitors Martineau Johnson, says institutions may no longer be able to deny entry to students under the age of 18 if they fulfil other admissions criteria.

Guidance issued by the Equality Challenge Unit argues that while personal maturity could be an issue in students aged under 16, it would be hard to deny a university place to those aged 16 and above on age grounds. It advises institutions to have a child-protection policy in place, a trained senior member of staff to deal with children and to get the Criminal Records Bureau to check staff responsible for under-18s.

The ECU also recommends a common admissions procedure for all ages.

Swanton's firm advises clients to move away from defining limits in terms of age and towards focusing on the academic and professional characteristics necessary for entry for a particular course. "Age per se shouldn't be a barrier," she says. "It is rather the life experience and academic experience of the individual that should be considered."

A spokesman for the Department for Work and Pensions age partnership group says you need need to be careful about demanding certain qualifications if they cannot be shown to be relevant to the post. If they have been recently developed or are no longer available, this could be discriminatory. You would need to show that equivalent qualifications are acceptable.

Interview panels should not be aware of how old a prospective member of staff or student is. Date of birth can be requested on an application form but should really be used only for age-diversity monitoring.

And interviewers should not make assumptions based on a bald pate or a few too many crow's-feet, warns Olivia Besly, human resources manager of Newham College London, the first further education college to become an Age Positive Champion. The legislation applies to discrimination based on perceived as well as real age. "Don't think a person is going to be retired soon so there is no point appointing them," says Besly. "They may be only 55 and planning to work for the next ten years."

Sam Heath, senior media officer for Age Concern, says his organisation is particularly concerned about potential older doctoral and other postgraduate students being turned down because of their age. "All universities need to stop working on the assumption that their students are young, and need to tailor courses and services to all age groups," he says.

"Providing a society and limited staff resources for older students is not enough: this attitude needs to be embedded across universities."

Heath says that, thanks to pressure from Age Concern, there is no longer an age limit on claiming a student loan to pay for tuition fees and the limit for claiming a loan for living costs has risen to 60, but it is important for universities to make sure that all students know about this change in the law.

Soulsby says that everyone in higher education needs to be aware that the regulations cover everything a university does. "Because it is about the whole student experience within higher and further education, it covers goods and services such as creches, student union shops, libraries and other facilities," he says.

He adds that every university department needs to carry out risk assessments and to ensure that this work is being co-ordinated.

John Macnicol, visiting professor in social policy at the London School of Economics and author of a book on age discrimination, says that the full impact of the legislation is unlikely to become clear for some years as it will have to be tested in court.

But he warns of the dangers of indirect discrimination through anything that makes an older person's life more difficult - putting them on the 17th floor of a building without a lift, for example. This could be interpreted as constructive dismissal.

And Besly says you should be careful about sending age-specific birthday cards. Jokes about someone being over the hill could cause a sense of humour failure among university managers if the birthday girl or boy makes a complaint.

Further information Equality Challenge Unit: www.ecu.ac.uk

Department for Work and Pensions team promoting the benefits of a mixed age workforce: www.agepositive.gov.uk/agepartnershipgroup   Age Discrimination: An Historical and Contemporary Analysis , by John Macnicol, CUP, 2006.

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