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CHILD AND YOUNG WORKERS (1)

Updated: 01 September 2008

The law:
Children and Young Persons Act 1933;
Children (Performances) Regulations 1968, SI 1968/1728;
Health and Safety at Work Act 1974;
Health and Safety (Training for Employment) Regulations 1990, SI 1990/1380;
Working Time Directive (93/104/EC);
The Protection of Young People at Work Directive (94/33/EC) (Young Workers' Directive);
Disability Discrimination Act 1995;
Employment Rights Act 1996;
National Minimum Wage Act 1998;
Public Interest Disclosure Act 1998;
Children (Protection at Work) Regulations 1998, SI 1998/276;
Working Time Regulations 1998, SI 1998/1833;
Management of Health and Safety at Work Regulations 1999, SI 1999/3242;
National Minimum Wage Regulations 1999, SI 1999/584;
Working Time (Amendment) Regulations 2002 SI 2002/3128.
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Definition of young worker:
under the Young Workers' Directive (the full title being The Protection Of Young Persons At Work Directive 1994 (94/33/EC)), a young worker is any person under 18 years of age having an employment contract or an employment relationship as defined by the law of a Member State: Art.3(a).

The Young Workers' Directive sets out definitions of 'young person,' 'child,' and 'adolescent:'

(1) a 'child' is: a young person of less than 15 years of age or is still subject to full-time
schooling under national law: Art.3(b);

(2) an 'adolescent' is: any young person of at least 15 years of age but less than 18 years of
age who is no longer subject to compulsory full-time schooling under national law:
Art.3(c).

The employment of young workers under 18 years of age is regulated by the Working Time Directive: see Working Time Regulations 1998, SI 1998/1833. The Regulations specify that an 'adult worker' is a worker who has attained the age of 18, while a 'young worker' is a worker between the ages of 15 and 17 and who is over the compulsory school age: Reg.2(1).

The Working Time Regulations do not define 'child.' The 1933 Act, however, defines a 'child' as, in relation to England and Wales, a person who is not over the compulsory school age as specified in s.8 of the Education Act 1996: s.30(1).

The 1933 Act provides much more stringent standards governing the employment of children than does the Working Time Regulations for adults by forbidding the employment of a child before 7am or after 7pm: s.18(1)(c).

The 1933 Act also provides for significantly more restricted working hours for children than does the Working Time Directive for adult workers: s.18(1)(h).

Case authority:
Addison & anor t/a Brayton News v Ashby, EAT, 17.01.03 (0850/01). The central issue in this case was whether young employees were entitled to statutory holiday leave under the Working Time Regulations and a minimum wage. During the course of the appeal, the EAT stated: "… although children are not expressly excluded from the Working Time Directive, children are a specific risk group for whom specific provisions for limitation of working time, and night work, and for the provision of breaks, rest periods and leave are to be found in the Young Workers' Directive rather than in the Working Time Directive."

The EAT held that it was clear that the Young Workers' Directive and legislation implementing it into domestic law (namely the Children (Protection at Work) Regulations 1998), laid down minimum requirements to protect child workers. In contrast, the Working Time Regulations apply only to adult workers (those over the age of 18) and young workers (those between 15 but who are under 18 and who are over compulsory school age). Therefore, young workers under the age of 16 (such as paperboys and girls) cannot claim paid holidays. Only workers who are over compulsory school age (16 in the UK) are entitled to statutory paid leave under the Working Time Regulations 1998.

The EAT also held that the expression 'worker' in the Working Time Regulations was not intended to include children, who were intended to be provided for and were provided for by the 1933 Act. Since Ashby (the applicant) was a child, he was not included within the definition of worker in the Working Time Regulations and was not entitled to statutory paid annual holidays under Reg.13. Therefore, being a child worker, employed as a paperboy, his claim for statutory holiday pay under the Working Time Regulations and a claim for unlawful deduction from pay were dismissed by the EAT.

Holidays:
the Young Workers' Directive and the 1933 Act make specific provisions for holidays for child workers. The 1933 Act provides child workers with at least two consecutive weeks without employment during school holidays: s.18(1)(j). As does the Children (Protection at Work) Regulations 1998 which came into effect on 04 August 1998 and which transposed into UK law the EC Directive 'The Protection of Young Persons at Work' (94/33/EC). Thus the Act and the Regulations implement Art.11 of the Young Workers' Directive that requires that children of compulsory school age have a period free of work, so far as possible, in school holidays.

Young persons:
the Management of Health and Safety at Work Regulations 1999 give young persons, i.e. persons over compulsory school leaving age but below the age of 18, special protection. Before employing a young person, the employer must make a risk assessment, taking into account his inexperience, lack of awareness of risks and immaturity, the fitting and layout of the workplace, exposure to physical, biological and chemical agents, the way work equipment is handled, the organisation of the processes, the extent to which health and safety training is provided, and the risks from certain dangerous processes: Reg.3(5)(a). Employers must ensure that young persons are protected at work from any risks to their health and safety which are a consequence of their lack of experience, absence of awareness of risks and lack of maturity. Special provision has been made for young persons in the Working Time Regulations 1998.

The Young Workers' Directive states that special measures are needed with regard to the health and safety of children. Article 4 prohibits work by children, subject to specific exceptions, such as performances in cultural and advertising activities, training schemes and 'light work' unless they are over the age of 14 (national law may lower this age to 13). It is for each Member State to 'determine the working conditions' relating to light work, subject to maximum working periods, such as two hours 'light work' on any school-day.

Note: the UK's Children (Protection at Work) Regulations 1998 increased from 13 to 14 the age at which a child may be employed in any work (other than as an employee of her or his parent or guardian in light agricultural or horticultural work on a non-regular basis).

The government announced new measures at the end of 2002, in the form of the Working Time (Amendment) Regulations 2002, to amend the Working Time Regulations. These came into effect on 6th April 2003. They provide health and safety protection to around 40,000 workers aged between 16 and 17 from working excessive or unsociable hours. Statutory limits are placed on the working hours of those over the minimum school leaving age of 16 and under 18.

The new Regulations will prohibit those between school leaving age and 18 from working more than 40 hours a week or working more than 8 hours in any one day: Reg.5A(1); and working between either 10pm - 6am or 11pm - 7am if the young worker is contractually required to work later than 10pm: Reg.6A.

Young workers are entitled to a rest break of at least 30 minutes where her or his daily working time is more than four and a half hour: Reg.12(4). In contrast, an adult worker is entitled to a rest break of at least 20 minutes where her or his daily working time is more than six hours.

The then Employment Relations Minister Alan Johnson, MP said: 'These new Regulations will give 40,000 young people better rights without damaging their employment prospects. Young people are a vulnerable section of the British workforce who deserve additional protection. It is important that they get the protection they need whilst maintaining flexibility in the labour market.'

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