Question
I run a restaurant and am currently recruiting new employees. I have received applications from candidates aged 16 and 17 and I’m considering taking them on, but I’m unsure whether I should apply different rules to them or just treat them like everyone else.
Answer
As contradictory as it may seem, you may have to do both, depending on the aspect of employment in question. For the purposes of this response, references to ‘young workers’ mean those above school leaving age (normally 16) but under 18.
As I’m sure you’re aware, the purpose of UK discrimination legislation is to promote equality between all employees, and in general terms young workers should be treated no differently to other employees. For example, it could be discriminatory not to promote a candidate solely because you think they are too young, or to provide a young worker with less generous sick pay.
However, there are certain areas where the law allows or requires difference in treatment, which can either be to a young worker’s detriment or advantage. For example, before employing a young worker, you must conduct an assessment of any risks to their health and safety, taking into account their age and level of maturity. Particular risks in your setting could be kitchen equipment (such as blenders) or substances such as cleaning products. If any hazards are present it would be helpful to have a record of risk assessments as well as any training you have provided.
An example of an area in which you are permitted to treat young workers differently is the national minimum age (NMW). The current minimum rate of pay for young workers is £4.05, whereas the NMW for employees aged 25 or over is £7.50; almost twice as much. In this sense, NMW legislation is effectively a lawful justification for treating young workers differently, although it is of course always open to employers to pay young workers more than the statutory minimum.
Other laws are in place that require different treatment of young workers, some of which can be found within the Working Time Regulations (WTR). Many employers are aware of the 48 hour limit on average weekly working time, which states that employees cannot work an average of more than 48 hours per week over a 17 week reference period (unless they are exempt or have opted out).
However, different rules apply to young workers. For example, a young worker cannot be asked to work more than eight hours in a day or more than 40 hours in a week. In addition, while the 48 hour limit can be averaged for adult workers, allowing more work in some weeks and less in others, the same does not apply to young workers. For them, the eight and 40 hour limits apply to each day and each week.
There are also rules on when a young worker can be asked to work. The WTR state that a young worker cannot generally be asked to work between 10pm and 6am, unless the contract obliges them to work after 10pm, in which case they cannot work between 11pm and 7am.
That rule can become more complicated in certain areas, including for young workers in a restaurant. In those cases (such as yours), the young worker can be asked to work until midnight and after 4am, but only in limited circumstances, such as where there is a busy period and there is no adult worker available. However, even in those circumstances, a young worker cannot be asked to work between 10pm and 6am (or 11pm and 7am) if it would adversely affect their education or training.
Young workers also have greater entitlements to rest breaks. They must generally be given a daily rest period of 12 hours, a weekly rest period of 48 hours and a rest break of 30 minutes where they are asked to work more than four and a half hours.
Shift workers or those whose work is split up into more than one period per day (as can happen in restaurants with ‘split shifts’) may be exempt from the rules on rest periods and breaks but you would still be expected to allow the rest time to be taken at other times. For example, if you could allow a rest period of only 10 hours between shifts, you would normally be expected to allow the other two hours to be taken elsewhere in the week. This is called ‘compensatory rest’.
As a final point, your own local authority may have their own rules on employing young people. This generally applies to the employment of children below school leaving age (under 16), but it is worthwhile making enquiries to determine whether they have any additional rules in relation to employing young workers.
In summary, the general approach should be to treat young workers no differently to others. However, some differences in treatment may be allowed (such as in relation to the NMW) or required (such as in relation to the WTR). The rules outlined above will no longer apply when the employee reaches the age of 18, as after that point normal employment laws will apply to them, although of course there is a further age band of 18-20 for NMW purposes which may be applied.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.