Recent developments affecting young workers

Two recent developments mean that employers of young workers will need to review their working practices. Firstly, after taking advantage of the time-limited opt outs offered by the Young Workers Directive ("the Directive") the UK is now to implement that Directive. Secondly, employers of young workers should be aware of greater responsibilities under the Health and Safety Executive's ("HSE") recent update of their health and safety guidance for employers with young workers.

The Young Workers Directive

The DTI has issued a consultation document seeking views on the most appropriate way of implementing the Directive. The Directive affects all employers with employees over the school minimum leaving age but under eighteen. The aim of this legislation is to provide fair minimum standards which ensure that young people are protected from excess working time which could have adverse effects on their health, safety and education. Responses to the Consultation paper are required by 30th March 2001.

Working Time - Currently young workers are subject to the same provisions as adult workers, i.e. a maximum working week of 48 hours averaged over a 17-week reference period. The Directive provides for young workers to be limited to eight hours a day and 40 hours a week, with no averaging. The Directive allows for exemptions where there are objective grounds for doing so and in the case of force majeure.

Night Work - The provisions of the Directive prohibit young workers from working between midnight and 4am, with limited exceptions. The Directive allows exemptions for the armed forces, the police, employment in hospitals or in connection with cultural and artistic sporting or advertising activities, shipping and fisheries. The Government envisages that exceptions should be made in these areas where there are objective grounds and subject to compensatory rest being provided. It is envisaged that young workers who are excepted under any implementing Regulations will remain subject to the provisions applying to adult workers.

The Directive also prohibits young workers from working between 10pm and 6am or 11pm and 7am although there are wider exceptions. It is intended the choice of which period to adopt will be at the discretion of the employer. The exceptions include young workers in agriculture, hotels and catering, retailing and postal services and newspaper deliveries as well as those applicable above. Exemptions have to be supported by objective grounds, and there is a requirement for young workers to be adequately supervised during these hours where that is necessary for their protection.

Essentially, if a worker is required to work between 10pm and 6am, there will be wider derogations between 10pm and midnight and 4am and 6am. So between midnight and 4am the limited exceptions will apply. For example, a post worker would be prohibited from working between 10pm and 6am but exceptions could be made between 10pm and midnight and 4am and 6am.

The Government envisages that the implementing Regulations should specify the objective grounds, namely operational or customer requirements in the sector or occupation concerned, the need for continuity of service or production and foreseeable surges of activity. Additionally an employer may be able to argue that the need for the young worker to exceed the limit was due to the fact that the extra workload could not be reasonably met by organising the work differently (i.e. through adult workers rather than young workers and by deferring the work). However, in such circumstances it is likely that the employer would have to demonstrate that the young worker's education and training needs would not be damaged.

Health and Safety update

On 16th January 2001 the HSE published updated guidance for employers of under 18's which will also be helpful for parents, guardians, teachers and people who organise work experience. Young People at Work: a guide for employers (second edition), explains employers' duties to protect young people at work, as well as offer specific guidance on risks young workers are likely to encounter. The guidance includes particular risks to young people, what employers are required to do to comply with the law, specific restrictions on the work of young people, the provision and use of work equipment to young workers, advice on limits on working hours and references to Codes of Practice.

If you require further information about the rights of young workers and the duties of their employers please contact Simon Jeffreys or Anthony Fincham by telephone on +44 (0)20 7367 3000 or by e-mail at [email protected] or [email protected].