DTI "Coming of Age: Consultation on the draft Employment Equality (Age) Regulations 2006"
17 October 2005
Response from the Independent Schools Council
The Independent Schools Council (ISC), which represents 1,272 independent schools that educate 500,000 children, welcomes new regulation to encourage more businesses to adopt non-discriminatory age practices. However, ISC would like to take this opportunity to offer feedback on areas of the proposed guidance and legislation that may pose difficulties for schools when they try to combine it with their existing duties as educators.
ISC has already met officials from the Department of Trade and Industry (DTI) and Acas to raise these concerns and this response seeks to set out the issues discussed more formally.
Recruitment
Chapter 4.3.7 of the consultation document on recruitment, selection and promotion states that requiring a birth date or age on job application forms, although not age-discriminatory in itself, could provide the basis for age-discriminatory decisions and therefore, ‘for the avoidance of doubt, an employer may prefer to move questions regarding age to a diversity monitoring form (which those who take the recruitment decisions would not get to see)'.[i]
This guidance is in conflict with existing DfES and Bichard ‘best practice' on safe recruitment in schools. Following Bichard recommendations 16-18,[ii] best practice guidance for schools states that application forms should seek the applicant's date of birth, and ‘full history in chronological order since leaving secondary education, including periods of any post-secondary education/training, and part-time and voluntary work as well as full time employment, with start and end dates, explanations for periods not in employment or education/training, and reasons for leaving employment'.[iii] This, accompanied by proper reference checks, should ensure that the tragic consequences of employing people unsuitable to work with children are more likely to be avoided.
Therefore, whilst in many business sectors moving date of birth to a diversity monitoring form might be suitable. In the case of schools, whether independent or state maintained, this will not be appropriate.
ISC understands from the DTI that leaving this information on a recruitment form would not constitute discrimination, firstly because the legislation does not outlaw this practice entirely and secondly because it pursues a legitimate aim and is therefore objectively justified. However, if Acas guidance on this issue is to be offered, it should indicate that employers that are recruiting individuals to work with vulnerable people (i.e. work that requires CRB checks) should be able to ask for this information.
Retirement
The proposed legislation states that an employer to whom a request is made has a duty to consider the request where it is made more than 6 weeks before the intended retirement date.[iv] The employer should then meet with the employee and give a decision within 14 days, after which the employee has a further 14 days (or, if that is not reasonably practicable, a further period (not exceeding three months) as is reasonable) to appeal and subsequently discuss the appeal with the employer.[v] ISC feels that this timescale is inappropriate in the educational sector as it will not be possible to recruit new staff safely at this notice.
Safe recruitment practices demand a full set of carefully scrutinised references and an enhanced CRB check, which takes an average of 4 weeks to be completed, but can take longer depending on the volume of checks being processed at the time. And all this, before a job offer can be confirmed, ideally with extra time allocated should the chosen candidate be found unsuitable to work with children, in which case another candidate would need to be selected and checked.
ISC understands from the DTI that many employers, particularly small businesses, have similar concerns about this short timescale. It is difficult to see how an employee's request to stay can be given proper consideration when the employer may already have had to start recruiting their replacement. ISC want to be able to allow individual members of staff regardless of their age the right to make a real decision about how long they continue to work at a school without prejudicing the rights of children to an education of the highest possible quality. Therefore, ISC proposes that the date before which an employee is allowed to request to continue to work before a due retirement date be extended to 3 months. For members of staff in both the independent and maintained sector, this would be the equivalent of a normal notice period and mean that members of staff who were retiring would be treated no differently to those moving on to a new post.
Retirement by Mutual Consent
ISC is concerned that the consultation document does not provide clear advice on this issue. The opening point of chapter 6 which outlines the new retirement legislation states that ‘in many cases retirement is an occasion for which the employee has planned and to which the employee is looking forward...If so, the law has no further role to play'. However, paragraph 6.1.18 still maintains that ‘it will be good practice for the employer to inform the employee of the right to request working beyond the intended retirement date'. This guidance needs to be clarified as employers need to be aware that although one employee may retire happily without being informed of the retirement procedures, some, who are at first happy to retire, could change their mind. This will put both parties in a difficult position if the employee has not been previously informed of their right to request to continue working and the correct procedures followed.
[i] Consultation on the draft Employment Equality (Age) Regulations (DTI, July 2005) p 33, 4.3.7
[ii] The Bichard Enquiry Recommendations Progress Report (Home Office, December 2004) p58-61
[iii] Safeguarding Children: Safer Recruitment and Selection in Educational Settings (DfES, July 2005) p 9, 23
[iv] Draft Employment Equality (Age) Regulations 2006, Schedule 7, 5.1(b)
[v] ibid. 7.1