For training providers - FAQs

The answers provided in these FAQs do not constitute 'legal guidance' nor are they a statement of Government views.

As a training provider we offer apprenticeship programmes to youngsters and young adults based on the Government’s apprenticeship funding regime. I understand the Age Regulations make it illegal to refuse to accept an application from an older applicant, even if there is no public funding available to subsidise the cost of their programme?

Training Providers are under the same requirement as employers to objectively justify any direct or indirect age discrimination they seek to practice – unless it is covered by a general exemption written into the Age Regulations.

As far as this funding issue is concerned, training providers are in an invidious position because they are potentially stuck in the middle. Only after the Regulations were approved by Parliament did it emerge that the Government regarded the public funding of adult learning/training programmes to be outside the scope of the Regulations.

The Government bases its view on one of the clauses in the original EU Directive on which the Age Regulations are based. However, their view that loans and grants towards tuition fees, student maintenance and bursaries and scholarships are all excluded, is controversial and likely to be challenged fairly early on.

But in the meantime the guidance from the DTI on this is that rather than denying places to individuals who do not qualify for a subsidy (because of their age), you should offer them access on the basis that they, or their employers, have to pay for the course themselves. If you follow this line, the DTI’s advice is that you won’t have to objectively justify it.

Nevertheless, that won’t necessarily stop any older adult learner who has been impacted by the Government’s interpretation from seeking to bring legal action against you – even though you are only abiding by Government guidelines and following their policies.

We are a Further Education College and historically have offered subsidised courses to older learners. Are we still able to do so or would it be judged discriminatory under the new Regulations?

All training courses offered by employers, Higher Education institutions, Further Education, Adult Community Colleges and commercial and voluntary training providers come within the scope of the Regulations.

Offering subsidised training courses to any group – simply on the basis of age - is discriminatory. However, the EU Directive (on which the Age Regulations are based) does allow for the setting of age requirements relating to vocational training, as long as they can be objectively justified. So, according to Acas’s ‘Age and the workplace’ guidance, you need to consider :-

• Whether you can objectively justify the practice e.g. what evidence you have in support of restricting such financial help to a particular age group?
• What legitimate aim does the age-based criterion help you achieve, e.g. have you got clear evidence that demonstrates particular age groups would be excluded from your learning provision if they had to pay full fees?
• Are your age-related criteria a proportionate means of achieving that aim?
• Is there another way of achieving that aim without resorting to discrimination?

If your policy is based on past practice and you can’t find a suitable employment-related justification for taking a blanket approach to fee subsidies for older adults aged 60+, then you may need to rethink it. But not before considering whether there may be a ‘positive action’ justification for maintaining the previous policy.

As a training provider who has Work Based Learning contracts with both the Learning and Skills Council and Jobcentre Plus, I wondered if either has issued any guidance for organisations like ourselves, on how the Age Discrimination Regulations apply to us?

Although the LSC has published a short statement of its position the document does not appear to have been widely circulated. Your LSC Contract Manager should be able to provide you with a copy of it. It confirms that the LSC will continue to maintain the age based criteria used in much of its provision and funding as they fall outside the scope of the Regulations.

Our prospectuses and marketing material for our apprenticeships continue to talk about them being for either 16-18 year olds or 19-24 year olds. How should we ensure that future courses and materials are compliant with the requirements of the Regulations?

It doesn’t matter whether you are a College, a commercial or voluntary sector training provider, it certainly is a good idea to review the way you describe and market your courses.

The Regulations mean it is unlawful to use age as a determinant in the provision of vocational training. Even though you won’t normally receive public funding for those over 25 who might want to come on your apprenticeship programmes – especially in the case of programmes such as plumbing which appeal to older adults looking for a change or new direction – you won’t be able to exclude them on the basis of their age – only on their ability to pay or not.

But as the workforce is ageing and the Government has launched an £8 million marketing programme to convince individuals it is worth their while investing in the development of their own skills, you should positively welcome anyone over 25 who is prepared to pay their own fees. This could be an important business opportunity for you.

For all these reasons it is worth making sure your prospectus and marketing materials reflect an all-age approach. But once you have put your new materials together it would be a good idea to obtain legal advice on the wording and images you have used.