In the last months of its long period of office, the Conservative government issued a Consultation Document, with draft Regulations, on the implementation of the EC Directive 94/33 of 22 June 1994 on protection of young people at work. The Directive should have been implemented not later than 22 June 1996.
The Conservative government's attitude on the Directive's requirements on rest periods, breaks and health assessments for young workers doing night work can be compared to Marie Antoinette: let them work nights, without rest or breaks!
The DTI Document on the Young Workers Directive (YWD), like that on the Working Time Directive, is the usual sad, begrudging concession of minimum entitlements, often distorted and mis-described, seizing upon almost every possible exemption, derogation, exclusion and narrow definition. It is as if the objective of the government of an EU Member State was not to implement European law, but rather to evade that law, to deny to its citizens, workers, even the young, bare minimum entitlement such as rest periods and breaks during work, or health protection against the risks to young people of excessive night work.
"The government's approach" as stated in the DTI Document (para. 1.5) is that "costs to business" should be minimized (para. 1.8); in contrast, the Directive is "on the protection of young people at work". Space is too limited to highlight all the numerous misleading imprecisions, faulty transpositions, rhetorical and cynical flourishes in the DTI Document and draft Regulations.
Here's just a few examples:
- The false characterisation of the requirement of 2 days' minimum rest in each 7 day period (Art. 10(2)), so that the exceptional 36 hour minimum rest appears the norm (paras. 1.4, 3.2, 3.19);
- The rhetorical assertion that the temporary 4 year exception allowed the UK by Art. 17(1)(b) is "a renewable opt-out" (paras. 1.5, 3.1, 4.1). The reality is that it depends on whether the UK can persuade all the other Member States on the Council of Ministers to renew it in the year 2000.
Employment status of trainees under EU law
The DTI Document and draft Regulations are concerned with the entitlements of a "young person", defined as "an employee who has reached the age of 15 but not the age of 18 and who... is over compulsory school age" (Reg. 2(1)). This is meant to correspond to the YWD's definition of adolescent, which, however, uses the following terms: "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" (Art. 3(c)). The difference, then, is that the Regulations protect young persons/adolescents only if they are "employees"; not so for the Directive.
The difference is crucial with regard to young workers on training schemes. It is highlighted, with diabolical subtlety, by the Regulations' definition of "working time", which "where relevant shall include any time spent by the young person working under a theoretical and/or practical combined work training scheme or an in-plant work experience scheme" (Reg. 2(1)). This phrase appears virtually to replicate Art. 8(3) of the YWD, except that the Article does not say "where relevant". The implication of the Regulations is, of course, that where the young worker on a training scheme is not an "employee", the time on that scheme does not qualify as "working time" and is not relevant to the protection offered by the Regulations.
This is not consistent with the Directive. The DTI Document (para. 2.1) concedes that the Directive applies to those "working under a contract of employment, or an employment relationship defined and/or governed by law" (Art. 2(1)). It is clearly a restriction on this scope to limit the Regulations to "employees" as defined in Reg. 2(1): "any individual who works for another person under a contract of service or apprenticeship but does not include anyone who provides services under a contract of services".
First, persons who provide services under a contract (deemed "self-employed") have "a relationship of employment governed by law" and are covered by the Directive. The DTI Document appears to anticipate this by conceding that (para. 2.2): "If it was necessary for adequate implementation to apply the entitlements, in addition, to those who are under a contract personally to execute any work or labour (and who are subject to the protection in current sex discrimination legislation), the regulations would need to be so extended". It will be necessary.
In particular, the exclusion of trainees who are not "employees" is in clear contradiction of the Directive which explicitly includes time spent in work/training schemes (Art. 8(3)). The DTI Document deviously states that "While young people in education, are not actually employees, might find themselves involved in such activities, it is unclear how many adolescent employees would spend time in these ways. However, the regulations provide for any such young employees times so spent counts as 'working time'" (para. 3.5).
The Directive protects young people in such schemes regardless of their legal status as "employees", and Regulations which deny this should be challenged. In this way, the Directive could be significant for the legal status of trainees (and not only of young workers on training schemes) in UK law.
Enforcement of EC labour law
The DTI Document says with authority (para. 5.2): "no fault or liability would arise for an employer simply because a young person refuses to take up a due entitlement". The impression is of employers helpless when faced with the unlawful demands of their young employees to forgo rest periods or breaks or to insist on working at night.
Liability only arises to grant "that entitlement" (Reg. 8). It is not an offence to employ young people for the hours prohibited; only if an entitlement is requested and refused.
This approach to enforcement raises two issues under EC law which are central to the enforcement of UK labour law. First, are entitlements enough to comply with the requirement that rights are provided Secondly, if not, what is required?
The first issue arose also under the Government's proposals on enforcement of the Working Time Directive. The employee claims the entitlement and the employer refuses. What then? The assumption is that the employee persists and takes the rest period or break, or refuses to work nights, and the employers take action detrimental to the employee or even dismisses. The employee is given the right to complain. But what is compensated is the entitlement, there is no remedy.
Insult follows injury. The DTI Document asserts (para. 5,22) that "working 'excess' hours (i.e. during breaks, rest periods, night) would create no valid claim for 'extra' wages above and beyond what was properly due under the contract of employment".
Even if an employer insisted, or might have insisted, on the employee working longer than allowed under the law, the employee's remedy would not lie in making any claim for extra pay, but simply in the remedies provided for by the regulations. The regulations provide no remedy save for compensation when the employer punishes the employee for asking for the entitlement! To say this is inadequate compliance with EC law is an understatement.
What then? The DTI document has the grace to concede (para. 5.8) that "since young people - in contrast to older workers in general - may be reluctant to assert or insist upon entitlements in direct confrontation with their employer", the protection against detriment or dismissal would not suffice. The proposal is to allow for enforcement through criminal sanctions, with the responsibility resting with the DTI, through the Health and Safety Executive: "a comprehensive national network". This is to be the mechanism for dealing with the case where (para. 5.11) "an employer refuses to grant entitlements provided for by the regulations but does not actually penalise or dismiss any young employee who requests them".
To burden the over-stretched HSE with this responsibility is cynical. Contrary to its own assessment of the likelihood of young workers confronting their employer, the DTI Document hastily added that there is no question of the HSE undertaking an investigation or review of employer practices without a complaint. Even the Conservative government felt obliged to canvass, however unwillingly, the alternative possibility of granting enforcement powers also to local authority (paras. 5.18-19).
The YWD thus raises, in even more acute form than the Working Time Directive, the problem of adequate enforcement of EC labour law. The overlap between the regulation of working conditions (working time) and health and safety make acute the failure of UK labour law in providing effective remedies for violations of workers' rights under EC law. It is only a question of time before UK law is forced to confront these issues. The Labour Government is bound to consider these issues in a more constructive way.