What do you need to know about employing children?
Earlier this year The Federation of Small Businesses called for the reintroduction of compulsory work experience for children (which ended in 2012) to help them be 'work ready' when they enter the work environment.
This note is intended as an overview of the main issues that employers and/or schools need to consider when providing work experience opportunities to children and young people.
HOW DO I KNOW IF MY EMPLOYEE IS CLASSED AS A CHILD OR YOUNG PERSON?
The law differentiates between a 'child' and 'young person'.
A 'child' is any person of compulsory school age or who is under the minimum school leaving age (i.e. up to the age of 16), as per the Education Act 1996 ('EA'96'). Although young people are required to be in education, training or apprenticeship up to the age of 18, that requirement can be achieved outside of 'school' and has not altered the definition of compulsory school age.
A 'young person' is defined in the EA'96 and the Working Time Regulations 1998 ('WTR'98') as someone over the compulsory school age who has not reached their 18th birthday.
Also 'employment' in this context covers any person who assists in a trade or occupation carried on for a profit, even if they receive no payment (as defined in the Children and Young Persons Act 1933 ('CYPA'33')). This is a wider test than whether the individual is an employee in law, e.g. for the purposes of unfair dismissal and other employment rights.
Accordingly schools will be concerned for any child or young person on its school roll.
Statutory restrictions on the employment of children and young persons
There are various statutory restrictions on the employment of children and young persons covering the following:
The general position is that children are not permitted to be in full time employment. Children aged 14 and above can be in part-time employment subject to restrictions, as referred to below.
Children under 13 can undertake performance roles such as modelling or acting where the relevant Local Authority ('LA') has issued the employer a performance licence for that child.
Local Authority ('LA') byelaws (see below) can extend permission for part-time work to children aged 13 and can also extend the type of work and hours of part-time work children aged 13-16 can undertake. An employer will require a child work permit unless offering work experience arranged by a school.
Above compulsory school age there are no prohibitions on working, although restrictions on type and hours of work will still apply. From the age of 18 employment rights will apply.
Type of work
Children can only be employed to do 'light work' unlikely to be harmful to the child's safety, health or development, or their school participation.
All employers have a duty to ensure the health and safety of their employee's, regardless of their age. However additional considerations must be given to children and young people as a consequence of their lack of experience, maturity and their being unaware of risks. Employers are also under a duty to inform parents or guardians of any child of possible risks and measure in place to mitigate them, although this can be done verbally.
For more information, employers and parents should read the Health and Safety Executive's online guidance 'What the law says about young people at work'.
Hours of work
Under CYPA'33 children cannot be employed:
- if on a school day, before the end of a school day (this if often relaxed via LA byelaws);
- before 7am or after 7pm;
- for more than 2 hrs on a day that they have to go to school, or a Sunday;
- for more than 12 hrs in any school term week (which is seven consecutive days);
- if they are under 15, for more than 5 hrs on a Saturday or, if 15-16 for more than 8 hrs on a Saturday;
- if under 15 and during the school holidays, a child cannot work for more than 25 hrs in the week (i.e. max 2 hrs on Sunday and 5 hrs otherwise) or, if aged 15-16 for more than 35 hrs in the week (max 2 hrs on Sunday and 8 hrs otherwise); and
- without a one hour rest break after working four hours in any day.
Under WTR'98 a young persons working hours must not exceed 8 hrs a day or 40 hrs a week. Employers must take all reasonable steps to ensure that young persons comply with their working time limits and keep records to show that the limits are being complied with. There are some exemptions to these limits covering young persons in certain excluded sectors, domestic workers in private households or workers in the armed forces.
Children are not entitled to the national minimum wage, but young persons are entitled to the 'young workers' national minimum wage rate.
Children must be given a two-week break from any employment in each year, but there is no statutory right to paid annual leave.
Local Authority byelaws
In addition to the statutory restrictions on employing children (above) the CYPA'33 grants LAs the power to make byelaws concerning a number of those restrictions.
A set of model byelaws was produced in 1998 which require LAs to issue work permits for the employment of children. The model byelaws are not mandatory, but many LAs do use them. It is therefore advisable for employers to check if a permit system is in operation with their LA.
Work experience schemes
The EA'96 allows children of compulsory school age in their last two years of school to take part in work experience schemes that would otherwise be prohibited or limited. The effect is to dis-apply the relevant provisions of CYPA'33 and LA byelaws.
However, the EA'96 provides that children on work experience should usually work no more than eight hours per day and no more than 40 hours per week. Certain restrictions continue to apply, e.g. employment that is:
- beyond the child's physical or psychological capacity;
- in heavy industries (e.g. mining, quarrying and manufacturing);
- in premises where alcohol is sold and the child is unaccompanied.
Employers need to be especially sensitive to their duties in respect of DBS checks and reporting if they are, or are considering, employing children or providing work experience placements to children. It is a criminal offence for employers to fail in these duties.
Schools also need to consider their safeguarding duties in respect of children put into work experience placements. Being pro-active and asking for proof of safeguarding measures from prospective work placement employers is best practice.
Schools should also consider requesting evidence from prospective work experience providers to show that they have performed the necessary risk assessments and ensuring parental consent to place the child on work experience is received.
In regard to children and young persons in work, schools will need to have regard to their safeguarding duties for the child's general welfare and safety. As noted above, the CYPA'33 provides that a child cannot participate in employment that is likely to risk the child's safety, health and development or school participation. If a school becomes concerned about any of these aspects it is best advised to raise concerns in the normal way in conjunction with safeguarding partners. If the concern arises in relation to any work placement, then the school must consider terminating that placement.
For employers and schools the starting points to consider are:
- To check with their LA to see what byelaws are in place and whether a permit is required to employ a child;
- Children as young as 13 (depending on local byelaws) can perform 'light work' within a for-profit organisation;
- Children in the final two years of compulsory schooling can engage in work experience;
- Employers must have regard to the special health and safety requirements involved in employing children and young persons; and
- Safeguarding remains crucial and both schools and employers need to be sensitive to their obligations.
Work experience can provide considerable added value, but only as a part of a properly managed scheme given suitable school support and resources. Unfortunately cuts to school budgets and other priorities have seen many such schemes stop. The Federation of Small Businesses call for compulsory work experience for children does not include any particular proposals or ways to add support or resources.
However, there are existing external providers which already support schools develop work experience programmes including those that work in partnership with local employers (an example is the Ahead Partnership).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.