Report from the Commission on the effects of the transitional period granted to the United Kingdom concerning certain provisions of Council Directive 94/33/EC on the protection of young people at work
Date: 2000-07-20
Institutions: European Commission
Subjects: United Kingdom, child labour, child protection, labour law, youth employment

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 20.07.2000
COM(2000) 457 final

REPORT FROM THE COMMISSION

on the effects of the transitional period granted to the United Kingdom concerning
certain provisions of Council Directive 94/33/EC on the protection of young people at
work

1.

1.1.

1.2.

INTRODUCTION

Council Directive 94/33/EC on the protection of young people at work (hereafter
referred to as “the Directive”) was adopted on June 22, 1994 and published in OJ
L216/12 (20.8.94).

The Preamble to the Directive indicates that “children and adolescents” must be
considered “specific risk groups” and that measures must be taken with regard to
their safety and health and further recites that the maximum working time of young
people should be “strictly limited” and night work by young people should be
prohibited, with the exemption of certain jobs specified by national legislation or
rules.

1.3.

The final recital of the Preamble, however, provides that:

“Whereas the implementation of some provisions of this Directive poses particular
problems for one Member State with regard to its system of protection for young
people at work; whereas that Member State should therefore be allowed to refrain
from implementing the relevant provisions for a suitable period”.

1.4.

The Member State in question was the United Kingdom and Article 17 (1) (b)
provides that:

"The United Kingdom may refrain from implementing the first subparagraph of
Article 8 (1) (b), with regard to the provision relating to the maximum weekly
working time, and also Article 8 (2) and Article 9 (1) (b) and (2) for a period of four
the
years
implementation date).

from the date specified in subparagraph (a)."

(June 22, 1996,

1.5.

2.

2.1.

Article 17 (1) (b) goes on to provide that the Commission “shall submit a report on
the effects of this provision”.

THE DIRECTIVE

The relevant provisions of the Directive are as follows. Article 8, which is entitled
“Working time”, provides, in paragraph (1), that:

“Member States which make use of the option in Article 4 (2) (b) or (c) shall adopt
the measures necessary to limit the working time of children to:

(a)

.......;

(b)

two hours on a school day an 12 hours a week for work performed in term-time
outside the hours fixed for school attendance, provided that
this is not
prohibited by national legislation and/or practice; in no circumstances may the
daily working time exceed seven hours, this limit may be raised to eight hours
in the case of children who have reached the age of 15;

(c)

.........;

(d)

.........;"

2

Article 4, which is titled “Prohibition of work by children”, provides, in paragraph
(2), that:

“Taking into account the objectives set out in Article 1, Member States may make
legislative or regulatory provision for the prohibition of work by children not to
apply to:

(a)

........;

(b)

(c)

children of at least 14 years of age working under a combined work/training
scheme or an in-plant work-experience scheme, provided that such work is
done in accordance with the conditions laid down by the competent authority;

children of at least 14 years of age performing light work other than that
covered by Article 5; light work other than that covered by Article 5 may,
however, be performed by children of 13 years of age for a limited number of
hours per week in the case of categories of work determined by national
legislation.”

2.2.

Article 8 (2) provides that the Member States “shall adopt the measures necessary to
limit the working time of adolescents to eight hours a day and 40 hours a week."

Article 8(5) provides that Member States may, by legislative or regulatory provision,
authorize derogations from paragraph 1 (a) and paragraph 2 either by way of
exception or where there are objective grounds for so doing.

Member States shall, by legislative or regulatory provision, determine the conditions,
limits and procedure for implementing such derogations.

2.3.

Article 9, which is titled “Night work”, provides, in paragraph (1) (b), that the
Member States “shall adopt the measures necessary to prohibit work by adolescents
either between 10 p.m. and 6 a.m. or between 11 p.m. and 7 a.m.” It goes on to
provide, in paragraph (2) that:

“(a) Members States may, by legislative or regulatory provision, authorise work by
adolescents in specific areas of activity during the period in which night work
is prohibited as referred to in paragraph (1) (b).

In that event, Member States shall take appropriate measures to ensure that the
adolescent is supervised by an adult where such supervision is necessary for the
adolescent’s protection.

(b)

If point (a) is applied, work shall continue to be prohibited between midnight
and 4 a.m.”

2.4.

Article 3, which is titled “Definitions”, provides that:

i.

ii.

“child” shall mean “any young person of less than 15 years of age or who is
still subject to compulsory full-time schooling under national law”;

“adolescent” shall mean “any young person of at least 15 years of age but less
than 18 years of age who is no longer subject
to compulsory full-time
schooling under national law”; and

3

iii.

“working time” shall mean “any period during which the young person is at
work; at the employer’s disposal and carrying out his activity or duties in
accordance with national legislation and/or practice”.

The term “young person” is further defined as “any person under 18 years of age
referred to in Article 2(1)” “which provides that the Directive shall apply to “any
person under 18 years of age having an employment contract or an employment
relationship defined by the law in force in a Member State and/or governed by the
law in force in a Member State”.

THE LEGISLATIVE BACKGROUND TO THE DIRECTIVE

Neither the Commission’s original proposal (OJ C84/7, 4.4.92) nor its amended
proposal (OJ C77/1, 18.3.93) contained any clause to allow the United Kingdom to
refrain from implementing the relevant provisions for a transitional period. The
opinion of the Economic and Social Committee (OJ C313/70, 30.11.92) did not,
therefore, address this issue. Similar observations apply to the opinion of the
European Parliament (OJ C21/167, 25.1.93) (First Reading).

The first time the transitional period appears is in the common position of the
Council of 24 November 1993 (C3-0504/93-94/O383 (SYN)). Under the co-
operation procedure set out in Article 189c of the Treaty, the proposal, as set out in
the Council Common Position, returned to the Parliament for a second reading.

The Council Common Position was examined by the Parliament’s Committee on
Social Affairs, Employment and the Working Environment. In its report (PE Doc
the Committee stated that a UK committee member had
A3-108/94) at p.15,
announced that the United Kingdom already had rules which limit the working hours
of children in line with the proposed directive. The Committee consequently found
the proposed transitional period to be “incomprehensible”. The Parliament’s
Decision of March 9, 1994 (OJ 91/98, 28.3.94) recommended that both Article 17 (1)
(b) and the final recital of the Preamble be deleted.

Despite this recommendation, the Directive, when adopted by the Council on June
22, 1994 extended the transitional period to the limits on weekly working hours for
children. It appears from the minutes of the Council meeting that the delegations of
two Member States opted to abstain when the Directive was adopted. The
Commission, although expressing strong reservations on the initial provision
allowing the United Kingdom temporarily not to apply certain obligations provided
for in the Directive, was prepared to accept this solution for adolescents, "so as to
provide the United Kingdom with the opportunity for a transitional period to adapt its
system for adolescents, but the situation as regards children is different".

THE LEGISLATIVE SITUATION IN THE UNITED KINGDOM

The Directive was implemented in Great Britain and Northern Ireland by various sets
of Ministerial Regulations amending existing legislation. Articles 6 and 7 of the
Directive, for example, were implemented in Britain by the Health and Safety
(Young Persons) Regulations 1997 (SI 1997/135), which amend the Management of
Health and Safety at Work Regulations (SI 1992/2051 as amended by SI 1994/2865),
and in Northern Ireland by the Health and Safety (Young Persons) Regulations (NI)

4

3.

3.1.

3.2.

3.3.

3.4.

4.

4.1.

1997 (SR 1997/387), which amend the Management of Health and Safety at Work
Regulations (NI) 1992 (SR 1992/459 as amended by SR 1994/478). These
regulations came into force, respectively, on March 3, 1997 and October 1, 1997 and
are hereafter referred to as the 1997 Regulations.

The relevant provisions of the Directive in relation to “children” were implemented
in Great Britain by the Children (Protection at Work) Regulations 1998 (SI
1998/276) which amend the Children and Young Persons Acts 1933 and 1963
(which applied to England and Wales) and the Children and Young Persons
(Scotland) Act 1937. These regulations came into force on August 4, 1998 and are
hereafter referred to as the 1998 Regulations. Similar Regulations were enacted for
Northern Ireland.

The relevant provisions of
the Directive in relation to “adolescents” were
implemented in Great Britain by the Working Time Regulations 1998 (SI 1998/1833)
which also implement the provisions of Council Directive 93/104/EC concerning
certain aspects of the organisation of working time. These regulations came into
force on October 1, 1998 and are hereafter referred to as the Working Time
Regulations. Similar Regulations were enacted for Northern Ireland.

The 1997 Regulations define a “child” as “a person who is not over compulsory
school age” and a “young person” as “any person who has not attained the age of
18”. The Working Time Regulations define an “adult worker” as a “worker who has
attained the age of 18” and a “young worker” as a worker who has attained the age of
15 but not the age of 18 and who is over compulsory school age. The formula for
determining the school leaving age is that, where a person attains the age of 16 on
any date occurring between September 1st and January 31st next, he or she shall be
deemed not to have attained the upper limit of compulsory school age until the end of
the spring term which includes such month of January. A person whose 16th birthday
occurs between February 1st and August 31st shall be deemed not to have attained
the upper limit of compulsory school age until the Friday before the last Monday in
May in that year.

Regulations 2 and 8 of the 1998 Regulations amend the 1933 and 1937 Acts (referred
to in para 4.2 above) so as to provide that a child may not be employed for more than
eight hours or, if he or she is under the age of 15, for more than five hours in any day
both on which he or she is not required to attend school and which is not a Sunday,
or for more than 35 hours or, if he or she is under the age of 15, for more than 25
hours in any week in which he or she is not required to attend school.

The Working Time Regulations provide that a worker’s working time, including
overtime, in any reference period which is applicable in his or her case shall not
exceed an average of 48 hours for each seven days (see regulation 4). No distinction
is drawn between “young” and “adult workers”. A distinction, however, is drawn
between such workers’ entitlements to a daily and a weekly rest period and rest
breaks (see regulations 10, 11 and 12).

A distinction is also drawn in relation to an employer’s obligations as regards night
work. The Working Time Regulations define “night work” as “work during night
time” and “night time” is further defined as a period, the duration of which is not less
than seven hours, and which includes the period between midnight and 5 a.m. which

4.2.

4.3.

4.4.

4.5.

4.6.

4.7.

5

is determined by a relevant collective agreement or,
determination, the period between 11 p.m. and 6 a.m.

in default of such a

4.8.

The Working Time Regulations go on to provide in regulation 6 that an employer
shall not assign a young worker to work during the period between 10 p.m. and
6 a.m. (“the restricted period”) unless:

i)

ii)

the employer has ensured that the young worker will have the opportunity of a
free health assessment before he or she takes up the assignment; or

the young worker had an assessment of his or her health and capacities before
being assigned to work during the restricted period on an earlier occasion, and
the employer has no reason to believe that the assessment is no longer valid.

The employer must also ensure that each young worker assigned to work during the
restricted period has the opportunity of a free assessment of his or her health and
capacities at regular intervals.

Paragraph (4) of regulation 6 provides that the requirements outlined above do not
apply in a case where the work the young worker is assigned to do is of “an
exceptional nature”.

It can be seen, therefore, that the United Kingdom has taken advantage of the
possibility to refrain temporarily from implementing the relevant provisions as
foreseen under Article 17 (1) (b).

THE RATIONALE FOR THE TRANSITIONAL PERIOD

Prior to the implementation of the Directive, the Department of Trade and Industry
issued a Consultation Document on Measures to Implement Provisions of the EC
Directive on the Protection of Young People at Work (URN97/508). This document
dealt with the Directive’s provisions requiring measures to ensure that young
workers (i.e. those above minimum school leaving age but under 18) are entitled to
rest periods, rest breaks and free assessment of health and capacities prior to
assignment to night work and at regular intervals thereafter.

4.9.

4.10.

5.

5.1.

5.2.

The then U.K. Government’s approach was set out in paragraphs 1.5 and 1.6 of the
Consultation Document as follows:

“The Government believes that under the Health and Safety at Work etc Act 1974
the UK already has effective arrangements for protecting the health and safety of
young people at work. Implementation of the directive should not be allowed to
disrupt employment or training opportunity for young people which pose no real
health or safety risk. These arguments are integral to the Government’s successful
resistance to the application to the UK of provisions in the directive which would
otherwise have imposed maximum weekly hours of work for young people (articles
8 (1) (b) and (2)) and would have prohibited night work (articles 9 (1) and (2)). The
UK is allowed, under article 17 (1) (b) of the directive, to refrain from implementing
these provisions until June 2000. The Council of Ministers have the option to extend
the exemption beyond that date.This provides the UK with a ‘renewable opt-out’
from potentially costly and inappropriate restrictions on young people’s working
time.

6

5.3.

5.4.

5.5.

5.6.

5.7.

However the UK is obliged to enact measures sufficient to ensure compliance with
the requirements of the directive described above. The Government hopes that
responses to this consultation document will help it to satisfy this obligation in such a
way that young people’s employment and training opportunities are not significantly
reduced.”

The rationale for the transitional period thus appears to be that the imposition of
maximum weekly hours of work and the prohibition on night work, even with the
flexibility permitted by the Directive, would disrupt and/or reduce employment or
training opportunities for young people which pose no real health or safety risk.

It must be remembered that the then UK Government had initiated a challenge to the
legal basis of Council Directive 93/104/EC concerning certain aspects of the
organisation of working time on the basis, inter alia, that there was no reliable
evidence linking “working time” with health and safety : see Case C-84/94, United
Kingdom v Council of the European Union [1996] E.C.R. 1-5755.

The Court rejected the UK arguments (judgment of 12 november 1996).

The transitional period contained in Article 17 (1) (b) appears to have been
welcomed by the Confederation of British Industry (CBI), which took the view that
young workers were adequately protected by existing statutory provisions. The
Trades Union Congress (TUC), however, in its response to the Department of Trade
and Industry’s Consultation Document were opposed to the use of the transitional
period contained in article 17 (1) (b) relating to the hours of work of adolescent
workers.

In general the responses to the Government’s Consultation Document were varied.
Two examples are given here. The Small Business Bureau supported the transitional
exemption “from the arbitrary limits of young people’s working hours contained in
the Young Workers Directive, including the prohibition of night work”. The Bureau
thought it “clearly sensible” that opportunities for the training and employment of
young people should not be disrupted by the imposition of such limits since any
concerns about such hours were “properly dealt with” under existing health and
safety arrangements. The Bureau went on to say that it was “difficult not to conclude
that these provisions were drafted by persons who do not appreciate the factors
associated with the employment of young people and the measures already in place
to protect them”.

The transitional period was criticised, however, by the Greater Manchester Low Pay
Unit which considered that, by denying young people in the United Kingdom the
protection afforded in other Member States, the Government was placing them “at a
considerable disadvantage”. The Unit disagreed with the assessment that existing
legislation provided adequate protection and said that full
implementation was
essential to protect “these young workers who do not receive proper treatment from
employers”. It “strongly believed” that employment for young people “should not be
at the cost of their health and safety or be weighed against any possible cost to
business”.

7

6.

6.1.

6.2.

6.3.

6.4.

6.5.

THE PREPARATION OF THIS REPORT

In order to prepare the report foreseen under Article 17 (1)(b) of the Directive, the
Commission engaged an independent expert to provide evidence of the application of
the transitional period in the United Kingdom and the position of social partners on
this issue.

Meetings were arranged with the relevant personnel in the CBI, the TUC and the
Department of Trade and Industry, at which the question of the transitional period of
Article 17 (1) (b) was extensively discussed. Documentation was either provided at
or subsequent to these meetings.

The attitude of the CBI’s Human Resources Directorate was that the transitional
period granted to the United Kingdom by Article 17 (1) (b) should be extended. The
CBI expressed the view that protection in the United Kingdom for children and
adolescents was both “appropriate and adequate” and that non-renewal of the
transitional period in question “would create rigidities and impracticalities in sectors
such as broadcasting, retailing, hotel and catering”. The CBI also expressed the view
that non-renewal would affect the “employability” of young people and “could
undermine innovative schemes designed to provide practical skills to disaffected
young people”.

The non-application of Article 8 (1) (b) and (2) was seen as being of particular
importance for the performing arts industry (especially broadcasting) and the hotel &
catering industry The CBI stated that it knew of no evidence which suggested that
the health and safety of “older adolescents” (i.e. those who had left school) were
damaged by working longer hours than the 40 hour limit in the Directive.

As regards the non-application of Article 9 (1) (b) and (2), the CBI’s attitude was
that many sectors employed adolescent workers for whom the limit set on night work
in the Directive would prove impractical. Apart from the hotel & catering industry,
the CBI mentioned postal services, newspaper agents and retailers as being most
affected. A non-renewal of the transitional period would prohibit early starts and
would prevent adolescents from performing postal and newspaper delivery duties. It
would also restrict the ability of postal services to take school leavers on their postal
cadet scheme. In the retail sector, adolescents are often employed on “night time
teams”, mainly shelf filling. In addition, at peak trading times evening time might be
extended beyond the 10 p.m. / 11 p.m. limit. If the transitional period were not
renewed and work could not be re-arranged within the limits of the Directive, the
contracts of employment of these adolescents would come to an end and evening
cover at peak times would be restricted to employees over the age of 18.

6.6.

Essentially the view of the CBI was that the effect of the transitional period in Article
17 (1) (b) was to increase employment opportunities for young people in the
aforementioned sectors and that its non-renewal would reduce those opportunities.
The CBI were also concerned that, if there was not sufficient flexibility, young
workers would be tempted into the “black economy” which would be more
damaging to their health and safety.

6.7.

The CBI accepted that there are many possibilities for derogation in the Directive
which could potentially provide the necessary flexibility so as to minimise the
possible reduction in employment opportunities for young people. The CBI were

8

concerned, however, that these derogations posed problems in the United Kingdom
whose system “provides for individual rights rather than the system of collective
rights operating in other EU states”. That meant that terms such as “objective
justification” could not be decided by collective agreement but were matters to be
decided in each individual case and, consequently, without the continuance of the
Article 17 (1)
transitional period, employers could face “considerable
uncertainty” until the necessary case law was established.

(b)

The attitude of the TUC’s Economic and Social Affairs Department was that the
transitional period in Article 17 (1) (b) should not be extended. Indeed the TUC were
of the opinion that it should not have been availed of in the first place. The TUC
maintain that those aged between 16 and 18 are “in a transitional phase from full-
time education to full-time employment” and are not fully integrated into the labour
market.

to reach
The TUC also expressed the view that adolescent workers have yet
“intellectual or physical maturity” and that their personal development could be
impaired in the absence of special protection. The TUC were of the opinion that the
working hours provisions of the Directive would “reintroduce a modest level of
regulation essential for the protection of young people at work.” (The use of the word
“reintroduce” was due to the fact that the provision in the Employment of Women,
Young Persons and Children Act 1920 which prohibited the employment of young
people on night work in industrial undertakings was repealed by the Employment
Act 1989).

The TUC referred to a report on school age labour, which was based on a survey it
had commissioned in 1996. The TUC were “alarmed” that many children were
working illegally and for long hours and that this was “adversely affecting their
health and education”. 23% of the under-13s surveyed reported having a paid job,
generally paper deliveries (boys) and baby-sitting (girls) but also some shop work.
36% of those surveyed reported having worked before 7 a.m. and 53% reported
having worked after 7 p.m.. The survey showed that working these hours was
“clearly having a bad effect on school performance” in that 28% of those surveyed
were “too tired” to do their homework or schoolwork because of their job. 19% also
reported having had an accident or injured themselves at work.

The TUC expressed the view that the transitional period in Article 17 (1) (b) had the
effect of perpetuating the risk to young persons’ health, education and welfare.

The TUC were also of the opinion that there had been no “jobs boost” for young
workers following the repeal in 1989 of the relevant provisions of the Employment
of Women, Young Persons and Children Act 1920. The TUC also stated that, as
regards the position of newspaper deliveries, the Newsagents Federation were not
opposed to the full implementation of the Directive.

CONCLUSIONS

On the basis of the views expressed by the relevant personnel of the principal
organisations representing the two sides of industry in the United Kingdom and on
the documentation provided either during or after those discussions, the effects of the
transitional period contained in Article 17 (1) (b) of the Directive, as perceived by

6.8.

6.9.

6.10.

6.11.

6.12.

7.

7.1.

9

those organisations, may be summarised as
the
transitional period because it increases the employment opportunities for young
persons whereas the trade unions are opposed to the transitional period because it
perpetuates a risk to young persons’ health, education and welfare.

follows. Employers

favour

7.2.

7.3.

7.4.

The views of the trade unions are supported by a survey carried out by Market and
Opinion Research International (MORI), although that survey was confined to pupils
aged between 11 and 16.

No evidence was provided by either side of industry that employment opportunities
for young people were affected by the non-implementing of the relevant provisions
of the Directive. Furthermore, it is significant that there appears to be no statistical
data to support the argument that the removal in 1989 of the control on the hours of
work of persons between the ages of 16 and 18 increased the employment
opportunities of such persons.

The Commission services have been in contact with the United Kingdom competent
authorities with a view to informing them of the imminent adoption by the
Commission of the Article 17(1)(b) report. The United Kingdom authorities were
aware of the expiration of the transitional period and were informed by the
Commission officials of the flexibility rules allowed for by articles 8 (5) and 9 (2) of
the Directive.

In the light of the foregoing the Commission considers:

• The six-year implementation period was sufficient to allow the United Kingdom to adapt
its legislation progressively to all the minimum requirements laid down at Community
level in the Council Directive on the protection of young people at work. As the protection
of the safety and health of young people is at issue, full implementation and effective
application of its provisions in all fifteen Member States must be an over-riding
responsibility for each of them.

• The Directive contains sufficient possibilities for derogation in Articles 8 (5) and 9 (2),
which would provide the necessary flexibility. The particular difficulty identified by the
CBI about the use of these individual derogations does not appear to be supported by the
experience of the other common law Member State - Ireland - whose system also provides
for individual rights.

• As the deadline for implementing the first subparagraph of Article 8(1)(b) with regard to
the provision relating to the maximum weekly working time, and also Article 8(2) and
Article 9(1)(b) and 2 expired on 22 June 2000, the UK must ensure the full implementation
of the provisions of Council Directive 94/33/EC.

10