Work experience and employing children - what employers and schools need to know

A look at the overlapping laws, regulations and obligations around employing young people and children.

As part of Labour’s manifesto, the section ‘Kickstart economic growth’ contains plans to introduce a guaranteed two weeks’ worth of work experience for every young person and improve careers advice in schools and colleges.

With an apparent renewed emphasis on the provision of work experience, this article provides an overview of the main issues that employers and/or schools and academy trusts need to consider when providing work experience opportunities to children and young people.

How does the law differentiate between a child or 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. References below to ‘young people’ should be read to mean ‘young persons’ as under the WTR’98.

Employment and work experience

'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) and therefore includes work experience.

Statutory restrictions on the employment of children and young people

There are various statutory restrictions on the employment of children and young people covering the following:

Age limits

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 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 employees, regardless of their age. However additional considerations must be given to children and young people because 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 the measures in place to mitigate them, although this can be done verbally.

For more information, see the Health and Safety Executive's online guidance ‘Young people at work’ which includes a section on health and safety and work experience.

Hours of work

Under CYPA'33 children cannot be employed:

• if on a school day, before the end of a school day (this is 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.

*See below the section on disapplying these rules for work experience.

Under WTR'98 a young person’s working hours must not exceed 8 hrs a day or 40 hrs a week.

Employers must take all reasonable steps to ensure that young people 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 people in certain excluded sectors, domestic workers in private households or workers in the armed forces.

Pay

Children are not entitled to the national minimum wage, but young people are entitled to the under 18s national minimum wage rate which is updated each year.

Holidays

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.

Permits

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 to check if a permit system is in operation with the LA.

Work experience schemes

The EA'96 allows children in their last two years of compulsory schooling (i.e. aged 14 to 16 years)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.

Safeguarding

Keeping Children Safe in Education 2024 requires schools and colleges organising work experience placements to ensure that the placement provider has policies and procedures in place to protect children from harm – indeed this is a requirement under the Academy Trust Handbook as a condition of their funding agreement.

Children’s barred list checks via the DBS may be needed for those who supervise a child under the age of 16 on a work experience placement. Consideration will need to be given to the nature of the supervision to determine the checks needed, which might include whether the supervisor will be unsupervised themselves and providing the teaching/ training/ instruction frequently (i.e. more than three days in a 30-day period, or overnight).

Schools and colleges are not able to request that an employer obtains an enhanced DBS check with children’s barred list information for staff supervising children aged 16 and 17 on work experience.

If the activity undertaken by the child on work experience takes place for example at a school or college and gives the opportunity for contact with children, this may itself be considered to be regulated activity relating to children. If the work experience student is 16 or over then that student may need a DBS check if working with children or vulnerable adults on regulated activity. A DBS check cannot be requested for children under 16 years of age.

Regarding children and young people in work, schools will also 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.

Summary

For employers, schools and academy trusts, the starting points to consider are:

• to check with the 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 people; and
• safeguarding remains crucial and employers, schools and academy trusts need to comply with their obligations.

Work experience can provide considerable added value, but only as a part of a properly managed scheme with suitable school support and resources. Unfortunately cuts to school budgets, increased administrative burdens and other priorities risk limiting these schemes. While the new Labour government appears set to reinvigorate the support around providing work experience placements for those under 18, precisely how this will be achieved is not yet clear.

However, there are existing external providers which already support schools develop work experience programmes including those that work in partnership with local employers.

How Wrigleys can help Wrigleys acts for schools, academy trusts and employers, providing a full range of employment law. This includes safeguarding advice and advice on policies and procedures as well as on specific cases in determining the best course of action. Importantly, we also work with schools, academy trusts and the education sector on the wider range of issues they encounter on a day-to-day basis and so have an in-depth understanding of the context within which schools and trusts operate and their key priorities and concern

 

If you would like to discuss any aspect of this article further, please contact Michael Crowther or any of the employment team on 0113 244 6100. You can also keep up to date by following Wrigleys Solicitors on LinkedIn. The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.