Health and Safety
Executive / Commission
Local authority circulars
To: Directors of Environmental Health/ Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.
For the attention of: Environmental Services /Trading Standards /Fire Authorities /Other
This circular gives advice to local authority enforcement officers
1 This circular provides information on the specific provisions of the Management of Health and Safety at Work Regulations 1999 (management Regulations) Relating To Young Persons and highlights the key issues for inspection and enforcement. It should be read in conjunction with HSG165 'Young people at work - a guide for employers'.
2 The former Health and Safety (Young Persons) Regulations 1997 which came into force on 3 March 1997 are now subsumed within the Management Regulations. They implement the health and safety provisions of the Young Workers Directive (94/33/EC).
3 Practical guidance on the regulations is given in HSE's guidance booklet HSG165 'Young people at work - a guide for employers'. The guide concentrates on the regulations and does not cover every aspect of employment of young persons (YPs), although it contains brief information on some more specific issues e.g. the provision and use of work equipment.
4 HSE has also produced joint guidance for work experience organisers, HSG199 'Managing Health and Safety on Work Experience - A guide for organisers' in collaboration with the Department for Education and Employment (now the Department for Education and Skills (DfES), the Scottish Executive and the National Assembly for Wales.
5 This guidance is aimed specifically at organisers of work experience placements, i.e. schools, education business partnerships etc. It explains how they might assist employers (i.e. placement providers) to comply with the Management Regulations. It also builds on the references to health and safety in the existing DfES booklets, Work experience - a guide for employers, and Work experience - a guide for schools which are currently being updated.
6 The Management Regulations place particular duties on employers of young persons. Young persons are defined as being persons who have not attained 18 years. There are extra duties if the young person is a child, i.e. under minimum school leaving age (MSLA) (see appendix to this circular).
7 In essence, the Regulations introduce:
(1) a requirement to take particular account of certain specified factors when carrying out or reviewing risk assessments;
(2) a requirement that the risk assessment be carried out before the young person starts work;
(3) a requirement to prohibit young person from certain work if risk assessment identifies a significant risk which cannot be eliminated;
and in cases where the young person is a child:
(4) a requirement to provide specified information to parents/guardians.
8 The requirement at para 7(3) may give rise to situations where the employer should prohibit young persons from certain work even though the risks involved would be considered acceptable for adults.
9 Students and schoolchildren under 18 years, including those undergoing work experience, are covered by the Management Regulations. This is because persons undertaking 'relevant training' are considered as employees for the purposes of health and safety law, by virtue of the Health and Safety (Training for Employment) Regulations 1990.
10 Organisations or individuals who arrange placements for work experience schemes (placement organisers) have duties under HSW Act s.3.
11 The enforcing authority will be determined by reference to the Health and Safety (Enforcing Authority) Regulations 1998.
12 The Management Regulations ACoP (para 21) already states that when carrying out risk assessment employers should identify groups of workers who might be particularly at risk. It cites young or inexperienced workers as such a group. Responsible employers should therefore already be complying with the majority of the requirements which arise from the Regulations and any additional cost to business should be small.
13 Where the employment of children is common, inspectors should be aware of any particular health and safety implications.
14 The new regulations introduced into the Management Regulations do not apply to occasional work or short-term work.... regarded as not being harmful, damaging or dangerous to young people in a family undertaking'. Policy Division advise that the intention of this disapplication is to ensure the regulations do not apply in circumstances where the young person is a near relative of the employer. As a guide, young persons employed by husbands, wives, fathers, mothers, grandfathers, grandmothers, step-fathers, step-mothers, brothers, sisters, half brothers and half sisters may be considered as 'in a family undertaking'. Their employer will not therefore be considered to be subject to the new requirements.
15 3(4) and 3(5) define requirements for risk assessment in situations where young persons are employed or are about to be employed.
16 The effect of reg 3(4) is that before an employer employs a young person they should carry out a risk assessment which takes particular account of risks to the young person. Employers who already employ young persons are also required by reg 3(4) to review their existing assessments 'forthwith'.
17 Regulation 3(5) requires that the risk assessment takes into account certain specified factors. In so doing, it more closely defines the existing requirement to 'make a suitable and sufficient assessment' (the Management Regulations reg 3(1)). It has the effect of clarifying the nature of the employer's duty but it does not introduce a higher standard of compliance.
18 Where employers are already complying with existing regulations (e.g. the Management Regulations reg.3(1)(a)), all that may be necessary to comply with regs.3(4) and 3(5) is to review the factors taken into account in the assessment to ensure the measures taken are appropriate to young persons. However, employers will need to be alert to the fact that in some situations the appropriate measure arising from this review may be to prohibit young persons from carrying out the work.
19 In many cases there will be scope for using generic assessments which reflect core hazards and risks associated with the employment of young persons in particular types of work. Such generic assessments will be subject to the same limitations as "model" assessments (Management Regulations ACoP para 17) and should be treated in a similar fashion.
20 The factors specified in reg 3(5) cover both the psychological and physiological characteristics of young persons. These are considered separately in the following paragraphs.
21 The assessment should take into account the inexperience and immaturity of the young persons and also their possible lack of awareness of existing or potential risks. There may be situations where these factors are of sufficient importance that the young persons should be prohibited from the work.
22 In other cases provision of additional supervision and information may be necessary. The table in HSG165 Section 4 gives some pointers to situations where this is likely to be the case, and where sector-specific guidance has been produced this may also be relevant.
23 Particular physiological factors which should be considered in relation to the immaturity of young persons (reg.3(5)(a)) include:
(1) availability of PPE which is suitable for young persons (e.g. appropriate fit);
(2) stature, strength and reach of young persons in relation to their ability to operate controls (this is likely to be particularly relevant to the operation of vehicles and power tools); and
(3) body dimensions of young persons in relation to safe distances used to prevent access to danger zones (see BS 5304: 1988 Code of practice for safety of machinery and BS EN 294: 1992 Safety of machinery: safety distances to prevent danger zones being reached by the upper limbs).
24 Regulation 3(5)(g) requires that employers take into account risks arising from a number of agents, processes and work detailed in the Annex to the Young Workers Directive. These are listed in the first column of the table in Section Four in HSG165, together with guidance intended to assist the assessment process.
25 In many cases the physiological risks to adults and young persons are the same. However, there are some areas where young workers may require greater protection because of physiological differences. The table indicates that these are:
(1) work where pace is determined by machinery (muscle strength not fully developed);
(2) work in high pressure atmospheres (bones not fully developed and may be at greater risk of long-term harm);
(3) ionising radiation (slightly greater risk of developing cancer and hereditary effects); and
(4) whole body vibration (WBV) (greater risk of spinal damage as bones not fully matured and muscle strength not fully developed).
26 Column 3 of the table gives some guidance on the measures which might be appropriate to take account of machinery paced work, high pressure atmospheres and ionising radiation.
27 The Agriculture/Wood Sector has produced guidance on WBV exposure to adult operators of mobile agricultural machinery (Agricultural Information Sheet No 20). More general advice on WBV is contained in HSE leaflet IND(G)242L,' In the driving seat'.
28 In developing HSG165, consideration was also given to introducing indicative exposure limits for noise and hand-arm vibration which would have been lower than those currently used for adults. This approach was not pursued because the evidence for young persons being more at risk was not felt to be sufficiently compelling.
29 Regulation 10(2) requires employers who employ children (i.e. young persons below the MSLA) to provide information to the 'parents' on the risks identified in the risk assessment and also on the associated control measures which are provided. This requirement is additional to requirements under other legislation to provide information to employees.
30 Regulation 10(2) states that the information provided to parents, relating to the findings of the risk assessment and to the preventive and protective measures, shall be 'comprehensible and relevant'. HSG165 makes it clear that HSE will be satisfied if the information covers the key findings of the risk assessment. Similarly the information need only cover those preventative and protective measures which arise from the key findings of the risk assessment.
31 Legal definitions of MSLA and of the term 'a parent'' are given in the regulations, referenced to other legislation. The definition of 'parent' includes a legal guardian.
32 HSG165 makes it clear that HSE will not require the information to parents to be in writing and accepts that the employer may arrange for it to be transmitted to the parent by the child or (in the case of children on work experience placements) by intermediaries. Legal advice is that this will be sufficient to meet the requirements of the regulations provided the employer is satisfied that the information will be passed on.
33 Regulation 19 requires employers to take measures to ensure young persons are not exposed to significant risk. These measures should be based on the outcome of the risk assessment and in some cases may include the employer prohibiting the young person from certain types of work. This type of prohibition is most likely to arise in situations where the experience, maturity and awareness of a young person would be insufficient to allow the work to be carried out without significant risk.
34 The requirement in Regulation 19 to prohibit young persons from certain types of work does not apply to those who are over the MSLA and who are doing work:
(1) necessary for their training;
(2) under the supervision of a competent person; and
(3) where any risk is reduced to the lowest level that is reasonably practicable.
This is likely to be the case in many vocational training situations, e.g. government-funded training, modern apprenticeships, in-house training, and the work qualifying for NVQ/SVQ assessment. Children below the MSLA may not do work involving the stated risks in regulation 19(2) under any circumstances, including for training or work experience.
35 The requirement for employers to prohibit young persons from certain work, and also the relaxation of this requirement described at para 33, are both subject to the proviso that there are no other conflicting legal requirements.
| Reg.3(4)) | Reg.3(4) | Reg.3(5) | Reg.10(2) | Reg.19(2) | Reg.19 (3)) | ||
|---|---|---|---|---|---|---|---|
| Young Person (YP) above MSLA | assess risks before employing YP | review existing risk assessment forthwith | assessment must take account of certain specified factors | YPs not to be employed in specified work situations | Reg 19(2) disapplied in specified training situations | ||
| Young Person (YP) below MSLA | assess risks before employing YP | review existing risk assessment forthwith | assessment must take account of certain specified factors | provide information to parents | YPs not to be employed in specified work situations |