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HCR Law Events

10 October 2022

Guidance note on employing children under the age of 16

Legal and Practical Considerations for Schools

We have been asked when schools may employ or pay children on a regular and/or an occasional basis at the school and what are the legal and practical considerations surrounding this.  It is, of course, common for pupils to help out at various school events on a voluntary basis, such as showing prospective pupils around the school site – a benefit for both the school and the pupil. However, this note is not concerned with events of that nature.  The question posed is around employing children (whether children of staff or otherwise) and when schools can legally employ them in a part-time capacity when they are under the age of 16 and over the age of 13. Unsurprisingly, this is subject to significant regulation aimed at ensuring the health, safety, well-being, and education of children.

This note answers some of the key questions that schools are likely to have relating to the employment of children.

Unless stated otherwise, for the purpose of this note, “children” or “child” shall mean a child under 16.

What should schools be aware of at the outset?

There is a complex legal framework that applies to the hiring of children and, in addition to the statutory restrictions in The Children and Young Persons Act (“CYPA”) 1933 and any regulatory requirements, Local Authorities have the power to make local byelaws which will apply only to their region. As such, prior to employing children, schools should contact their Local Authority to ascertain whether any local rules / restrictions must be followed (and, in particular, whether a child employment permit is required (see further detail on this below)).

At what age can a child work?

The general rule is that a child can get a part-time job from the age of 14.  However, in certain circumstances and depending on local authority byelaws, children aged 13 may be able to work. The law prohibits the employment of children under the age of 13, subject to certain limited exceptions.

Schools wishing to employ children aged 13 should contact their local authority to ascertain whether they have issued byelaws permitting the employment of children of that age.

What work can a child perform?

Children can only be employed in what is considered ‘light work’. This means that they cannot do any job that may affect their health and safety or interfere with their education. Certain work activities are also prohibited or restricted including, for example, any work which poses a health and safety risk or any employment prohibited by local byelaws.

In a school setting, children may be generally employed for a specific event, or to perform light cleaning duties or provide kitchen assistance. Even in these circumstances, the associated risks will need to be carefully considered (see further detail on this below) and schools will need to check with their local authority whether any specific restrictions will apply. For example, some local byelaws prevent employment in a commercial kitchen other than where the child is not involved in the cooking process (thereby allowing work such as washing up, making sandwiches, waiting at tables, etc).

How many hours can a child work?

The basic rules which govern the working hours of children are as follows:

During term-time

Age Maximum hours per week Maximum hours on schooldays or Sundays Maximum hours on Saturdays
13 – 14-year-olds 12 2 5
15 – 16-year-olds 12 2 8

 

During school holidays

Age Maximum hours per week Maximum hours on schooldays or Sundays Maximum hours on Saturdays
13 – 14-year-olds 25 5 2
15 – 16-year-olds 35 8 2

 

Other general rules for children are that:

  • on a school day, they cannot work before the end of the school day (but this rule is often relaxed by local authority byelaws to allow a child to do a newspaper round in the morning before school starts);
  • they cannot work before 7am and after 7pm;
  • they must have a break from work of at least two weeks a year; and
  • they must have a rest break of one hour for every four hours worked.

What should children be paid?

Schools are free to determine what children are paid for their services because they are not entitled to the National Minimum Wage. That said, schools should always ensure that any renumeration is fair and reasonable and, to avoid risks from a discrimination and reputation perspective, the rate of pay should be applied consistently among child workers.

Children also do not pay National Insurance contributions meaning they do not need to be included on a school’s payroll.

What holiday are children entitled to?

As noted above, within each year, children must be given a two-week break from employment, but they are not entitled to paid annual leave in accordance with the Working Time Regulations 1998.

As with any other employees, schools can contractually agree to provide paid annual leave to child workers, should they wish to do so. Any paid contractual leave that is provided should be applied in a fair and consistent manner.

Will schools need permission from their local authority to employ children?

Possibly. Most local authorities require employers to apply for a child employment permit and, as part of the application process, have the power to request information about the proposed work and hours of work, and to check that employers have parental consent to hire the child. Local authority byelaws have the capacity to:

  • prohibit the absolute employment of children in any given circumstance;
  • list the type of jobs that children cannot do; and
  • reduce the number of hours a child can work on school days to less than two hours.

Schools should therefore check with their local authority to ascertain whether they operate a permit system and, if so, the procedure and rules they must follow to obtain a permit.

Permits can be revoked or refused by a local authority in certain circumstances (for example, if the child’s health, welfare, or ability to benefit from their education is likely to suffer).

Failure to obtain a permit where required is likely to result in the child not being covered by the school’s employer’s liability insurance so it is essential that schools check the situation with their local authority before agreeing to give work to children.

How should schools approach safer recruitment checks?

Inevitably, when hiring children, it will not be possible for schools to carry out all the mandatory pre-appointment vetting checks within the DfE’s statutory guidance, “Keeping Children Safe in Education” (KCSIE). For example, schools will not be able to obtain a DBS check due to the minimum age for the check being 16 and, depending on the circumstances, it may not be possible to obtain employment references from previous employers.

We recommend that schools follow their normal recruitment processes and carry out any safer recruitment checks they can. As a minimum, this is likely to include verifying the child’s identity and right to work in the UK and obtaining two references (ideally, one from a previous employer (where possible) and, if not, personal references can be obtained). Children should not undertake work within a school that offers the opportunity for unsupervised access to pupils.

Once schools have performed as many of the checks as possible, as part of their due diligence, they should carefully consider the information obtained and further clarification should be sought, if appropriate. This is a form of risk assessment and should be documented.

The checks that will be appropriate may vary on a case-by-case basis and we recommend that schools take legal advice to ensure regulatory compliance.

As an aside, where pupils over the age of 16 do paid work in their own school, they must be treated as ‘staff’ if the work is frequent and regular and gives the opportunity for contact with pupils in their capacity as pupils.

How should schools safeguard child workers?

Schools should ensure that a child has been adequately trained and will be supervised for the job they are required to do, is made aware of any of the risks that are involved in the job and has been provided with any necessary safety equipment and clothing.

Schools should ensure that an enhanced DBS check with children’s barred list information has been carried out for anyone who will be supervising or directly working with a child worker.

Are there specific health and safety requirements when employing children?

Yes. In addition to the usual health and safety obligations in relation to adults, there are additional obligations if children are being employed. In particular, schools must:

  • assess the risks to all young people under the age of 18 before they start work;
  • ensure that the risk assessment considers the inexperience, lack of awareness of risks and immaturity of young persons; and
  • introduce control measures to eliminate or minimise the risks, so far as is reasonably practicable.

This includes not employing a young person to do something beyond their capacity, not exposing them to harmful substances and not employing them in an area where there is a risk of accidents and where they are too young to appreciate that risk due to lack of experience or training.

Before employing a child, schools must also let a parent (or the person with parental responsibility) of the child know the key findings of the risk assessment and the control measures introduced.  While a written record is not mandatory, it is best practice.

The Health and Safety Executive has prepared detailed guidance on ‘Young people at work’, which can be accessed here.

Will schools need a contract of employment with a child?

Yes. To comply with employment law, when they start work, children should be issued with a ‘written statement of employment particulars’, which sets out the main conditions of their employment (for example, their pay, place, and hours of work).  A more comprehensive contract of employment could be provided, but any contract would need to be carefully tailored to ensure it is suitable for the child’s age.

Can children legally enter into an employment contract?

Yes, a minor (i.e. a person under 18 years old) can enter into an employment contract (or other contract regarding paid work) as it is considered to be a ‘necessity’ and, provided the contract as a whole is for the minor’s benefit, it will also be enforceable against the minor. Generally speaking, a normal employment contract will be enforceable in the usual way unless it contains unusual, complex, or onerous terms or exclusions of employer’s liability which take it beyond what is for the minor’s benefit.

What about work experience?

Work experience for 14–16-year-olds does not fall within the rules on child employment. However, the work experience must still comply with the rules on the employment of young workers. This includes restrictions on hours of work and type of work for young people under 18.

Could a child bring a claim in an employment tribunal?

There are no express provisions preventing children claiming employment protection rights, such as unfair dismissal or discrimination so, in principle, there is no reason why a child could not claim such rights if they have the requisite employment status and continuous service.

That said, case law has determined that a child who works is not necessarily an ‘employee’ and a wide interpretation should be given to the term ‘employment’ in the CYPA 1933 so that it encompasses children who are not employees in the strict sense of the word but are employed under contracts for services. As such, they may not be entitled to claim unfair dismissal.

As with any other member of staff, schools should take legal advice if litigation is anticipated or pursued by a child worker.

Are there any penalties that schools should be aware of?

If a child is employed in contravention of the regulations, there is a maximum fine for employers of £1,000 or, in the case of ‘health and safety’ offences, £2,000 (in a Magistrates Court) or an unlimited fine (in the Crown Court).

Is there anything else that should schools be aware of?

Schools should always check the terms of their Employers’ Liability Insurance to ensure that it covers the employment of children.

When employing children, it is important to get it right and we recommend schools seek legal advice at the outset. For specific queries, please get in touch.

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About the Author
Hannah Wilding, Associate

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