Children and young workers
Children and young workers are entitled to additional protection under various legislation including the Conduct Regulations and health and safety legislation. This section looks at who is a “child” or a “young person” and the additional protections they should receive.
What is the minimum school leaving age?
There are special rules relating to the employment or engagement of children. “Children” are defined as being under the minimum school leaving age. This minimum school leaving age differs in different parts of the UK as set out below:
Minimum school leaving age for England and Wales?
The school leaving date is the last Friday in June in the school year in which the child reaches the age of 16. (Section 8(4) of the Education Act 1996).
If a child reaches 16 on or before the last Friday in June they may leave school on that day. However if a child’s 16th birthday occurs after the last Friday in June but before the start of the new school year they will also be allowed to leave and take up full time employment immediately after the last Friday in June.
Minimum school leaving age for Northern Ireland?
Under Article 156 of the Education Reform (Northern Ireland) Order 1989 the school leaving date is 30 June in the school year.
This means that if a child reaches 16 after 30 June in any school year that child will not be eligible to leave school and enter full time employment until 30 June in the next school year.
Minimum school leaving age for Scotland?
Under Section 33(2) of the Education (Scotland) Act 1980 the minimum school leaving date for Scotland means those reaching 16 on or between 1 March and 30 September may leave school and take up full time employment on 31 May. For those reaching 16 on or between 1 October and the last day of February cease to be of school age on the “winter leaving date” which is the first date of the school Christmas holidays.
What are the restrictions on employment of children?
The main provisions governing children’s employment are contained in the Children and Young Persons Act 1933 (as amended) or in Scotland the Children and Young Persons (Scotland) Act 1937. However local authority bylaws made under those Acts place further restrictions on the hours and conditions of work and the nature of work that is permitted. A summary of the restrictions on employment of children is set out below though there may be some local variations.
REC members however are also advised to always contact their local authority to check the local byelaws in place if they wish to employ a child. Anyone wishing to employ a child must obtain a permit from the local education authority. This will specify the employment conditions to be observed.
The law permits children to work:
- For a maximum of 2 hours on any school day only one of which may be before the start of school
- or a maximum of 2 hours on any Sunday
- For a maximum of 12 hours per week in term time
- If aged under 15 for a maximum of 5 hours on any Saturday or on weekdays during school holidays subject to a weekly maximum of 25 hours in the school holidays
- If aged 15 or over for a maximum of 8 hours on any Saturday or on weekdays during school holidays subject to a weekly maximum of 35 hours in the school holidays
But they may not work:
- Under the age of 14 (although some bylaws allow children of 13 to work on a an occasional basis in their parents agricultural or horticultural business and in certain categories of light work)
- For more than one hour before school
- During school hours
- Before 7.00am or after 19.00pm
- For more than 4 hours in any day without a rest break of one hour
- Without having, each year, a break of at least two consecutive weeks during the school holidays
- Without an employment permit issued by the local authority. This will specify any further restrictions or conditions that must be observed
- In any industrial undertaking e.g. factory, building site etc.
- In occupations prohibited by local bylaws or other legislation (e.g. in pubs or betting shops) or do any work other than light work, i.e. work which does not jeopardise a child’s safety, health, development, attendance at school or participation in work experience
- In television, theatre or other forms of performance or modelling without a performance licence issued by the local authority.
The Education (Work Experience) Act 1973 (as amended) provides that regulations prohibiting the employment of children do not apply to the employment of pupils in the last academic year of compulsory schooling or the preceding summer term where the employment is in accordance with arrangements made or approved by the local education authority with a view to providing work experience as part of their education.
The 1973 Act does not, however, permit the employment of children in circumstances where the employment of young persons is prohibited under any other legislation.
What are the restrictions on the employment of young persons?
For those work seekers who are under 18, but are over the minimum school leaving age there are restrictions on the hours they may work under the Working Time Regulations 1998.
Young workers may not ordinarily work more than:
- 8 hours a day; and
- 40 hours a week
These hours cannot be averaged out and there is no opt-out available. They may work longer hours where this is necessary to either:
- maintain continuity of service or production, or
- respond to a surge in demand;
and provided that:
- there is no adult available to perform the task; and
- the training needs of the young worker are not adversely affected.
Young workers employed on ships or in the armed forces are excluded from the working time limits under the Working Time Regulations.
The Regulations also make provision of compulsory rest days and rest periods. Rules governing maximum weekly hours and paid holidays are the same as for adult workers. Young workers are entitled to more generous rest periods and rest breaks than adult workers as follows:
- Daily rest – 12 hours’ consecutive rest in each 24-hour period. These periods may be interrupted, however, where the work is either split up over the day or is of short duration. This may be modified in the case of unusual or unforeseen circumstances but compensatory rest must be given in the following three weeks
- Weekly rest – 48 hours each week. This may be reduced to 36 hours where justified by technical or work organisation reasons
- Rest breaks – a minimum of 30-minute rest break if work goes on for more than four and half-hours. This entitlement cannot be varied other than for temporary work which has to be done in unforeseen and exceptional circumstances. Compensating rest must be given within the following three weeks
- Night work – Since 6 April 2003 young workers may not ordinarily work at night between 10pm and 6am, or 11pm and 7am if their contract provides for work after 10pm except if they are employed in:
- o Hospitals or similar establishments; or in any of the following activities:-
o Cultural
o Artistic
o Sporting
o Advertising
Young workers may work between 10 or 11pm until midnight and between 4am to 6 or 7am if they are employed in the following types of establishment:
- Agriculture
- Retail trading
- Postal or newspaper deliveries
- A catering business
- A hotel, public house, restaurant, bar or similar establishment
- A bakery.
However the only circumstances in which they may work during these hours is if it is necessary to either maintain continuity of service or production; or to respond to a surge in demand for service or product. In addition there must be no adult available to perform the task; the employer must also ensure that the training needs of the young worker are not adversely affected; and the young worker must be allowed an equivalent period of compensatory rest.
Young workers must be adequately supervised where that is necessary for their protection.
However, a more onerous health assessment is required including a consideration of whether the young worker has the physical and psychological ability to do the work.
What is the duty to participate in training and education for young persons?
Duty to participate in education and training in England
In England there is a requirement for young people to remain in some sort of education or training, under the Education and Skills Act 2008, which applies to any person who:
- is resident in England
- has ceased to be of compulsory school age
- has not reached the age of 18, and
- has not attained a 'level three qualification' (two A-levels, or various other broadly equivalent qualifications)
The duty to remain in education or training can be fulfilled by participating in:
- appropriate full-time education or training, or
- training in accordance with a contract of apprenticeship or an apprenticeship agreement.
- 16 and 17 year olds can also comply with this duty where they are neither in full-time education or training, but instead can be:
- in “full time occupation”, in this case meaning working under a contract of employment or as a self-employed person under which arrangement the worker works at least 20 hours per week, and for which the expected duration of the contract or arrangement is at least 8 weeks, and
- participating in “sufficient relevant training or education in each relevant period”, for those in full-time occupation this means a minimum of 280 hours of guided learning per year or the equivalent pro rata for shorter periods.
Under these definitions, Employment Businesses are not able to supply young persons on a contract for services as these do not meet the definition of “full time occupation”. Further to this, the length of any given assignment is usually defined by the end client, and so Employment Businesses must take steps to ensure they are only offering assignments of an appropriate length to fulfil the minimum required duration. For Employment Businesses this ties in to their obligation under Regulation 20 of the Conduct of Employment Agencies and Employment Businesses Regulation 2015 to only introduce work seekers where they have taken all reasonable steps to ensure the work-seeker and hirer are both aware of all requirements imposed by law in for someone to work in the role the hirer seeks to fill.
There is currently no requirement in England that any time-off from work required in order for the young person to comply with the duty to participate in education and training should be paid.
It should also be noted that Chapter 3 of the ESA contains several provisions that would require the employer (including an employment business) to fulfil several obligations regarding checks that must be done in order to be able to hire young persons. However, these provisions have not yet come into force, and the current onus is on the young person, not the employer, to ensure they are participating in the correct level of training or education.
Paid time off for study and training in Wales and Scotland
In Scotland and Wales there is a statutory obligation for 16 and 17 year olds to take paid time off for study and training where they have not attained a specified level of achievement (the specified level of achievement is set out in Section 3 of the Right to Time Off for Study or Training (Scotland) Regulations 1999 and s3 of the Right to Time Off for Study or Training Regulations 2001.) This right to time off also applies to an 18 year old who has started work on the relevant qualification before turning 18 and requires time off so they can finish it.
The right is for a reasonable amount of time off and is paid. If the employer does not allow the time off or does not pay, then the employee will be able to bring a claim in the employment tribunal. The time limit for these claims in 3 months from when the time off was unreasonably refused, or not paid. Where the claim is successful, the employment tribunal can order the employer to either pay the employee the amount of pay he was entitled to where the time off was refused or pay what they should have been entitled to be paid where time off was allowed but no payment made.
Employees are protected from detrimental treatment due to taking this type of time off or from seeking to take it.
What are the health and safety requirements for children and young people?
The Management of Health and Safety at Work Regulations 1999 require employers to take special steps to protect the health and safety of young people and children who work for them. Before recruiting young people, employers must assess the risks to their health and safety and decide whether they should be prohibited from doing certain types of work. In making the assessment, employers must take account of:
- the inexperience, lack of awareness of risks and immaturity of the persons
- the fitting-out and layout of the workplace and the workstation
- the nature, degree and duration of exposure to physical, biological and chemical agents
- the form, range and use of work equipment and the way it is handled
- the organisation of processes and activities
- the extent of health and safety training provided or to be provided to young persons; and
- risks from agents, processes and work listed in the Annex to Council Directive 94/33/EC (b) on the protection of young people at work.
These regulations apply to employment businesses in that they should receive from the client any information regarding any specific features of the work which may affect health and safety, and pass this on to the worker. The employment business should be aware that certain types of work are prohibited for young persons unless:
- it is necessary for their training;
- they are supervised by a competent person; and
- any risk is reduced to the lowest level that is reasonably practicable.
The prohibited types of work are:
- work which is beyond their physical or psychological capacity
- involving harmful exposure to agents which are toxic or carcinogenic, cause heritable genetic damage or harm to the unborn child or which in any other way chronically affect human health
- involving harmful exposure to radiation
- involving the risk of accidents which it may reasonably be assumed cannot be recognised or avoided by young persons owing to their insufficient attention to safety or lack of experience or training; or
- in which there is a risk to health from:
- extreme cold or heat;
- noise; or
- vibration.
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