3 Employment of a child
One transaction of particular interest in relation to children is that of employment. Applying the criteria already discussed, an individual would only be able to enter into a contract of employment if it fell within the definition of a transaction which would commonly be entered into by persons of the same age and in the same circumstances. This is still the case, but in addition there are particular provisions relating to the employment of children. The legislation covering the employment of children is the Children and Young Persons (Scotland) Act 1937. The provisions within the Act apply not simply to individuals under the age of 16, as would be consistent with the Age of Legal Capacity (Scotland) Act 1991, but also to those under school leaving age.
Section 28 of the Children and Young Persons (Scotland) Act 1937 as amended by The Children (Protection at work) Regulations 1998 provides that children may not be employed under the age of 13. There can be an exception to this: local authorities may make by-laws that permit parents or guardians to employ children under the age of 14 in light work. Children between 13 and 14 may only be employed in light work specified by their local authority. This generally includes activities such as delivering newspapers. Over the age of 14 the employment options for children are expanded but children can still only be engaged in light work. Examples of light work provided in the Act are:
- agricultural or horticultural work
- delivery of newspapers, journals, etc.
- shop work, including shelf stacking
- work in hairdressing salons
- office work
- car washing by hand in a private residential setting
- work in a cafe or restaurant
- work in riding stables
- domestic work in hotels and other establishments offering accommodation.
Children may not be employed before 7 a.m. or after 7 p.m. on any day. They are also restricted to working two hours a day on days their school is open and on Sunday. On other days, children under the age of 15 are restricted to five hours a day and a total of 25 hours a week. Once over 15 years old, the limits rise to 8 hours a day and 36 hours a week. In addition to these restrictions, the Act also allows local authorities to make by-laws which prohibit children from being employed in specific occupations. These typically include occupations and places of work such as:
- cinemas, theatres, discotheques, dance halls or nightclubs, except in connection with a children’s performance
- selling or delivering alcohol, except in sealed containers
- delivering milk
- delivering fuel oils
- a commercial kitchen
- collecting or sorting refuse
- any work above three metres from ground (or floor) level
- any work where they may be exposed to physical, biological or chemical agents
- collecting money or selling/canvassing door to door, unless supervised by an adult
- work involving exposure to adult material
- telephone sales
- a slaughterhouse
- an attendant or assistant in a fairground or amusement arcade
- the personal care of residents in a residential care home unless supervised by an adult.
Local authorities are further able to regulate other matters such as intervals for meals and rest. They can also require children to be in possession of a work permit issued by the authority once it is satisfied that the nature of the work to be undertaken is appropriate and the child’s health and welfare is not likely to be at risk. Although these vary, most councils in Scotland have such bylaws. It is important to remember that a child need not be paid to be in employment in order to come within the terms of the Act.
Activity 3 Children and employment
Consider the following scenarios. Do you think the child has been lawfully employed?
1 Andrew is 12. He is employed by his father to weed the garden.
2 Brenda is 13. She has a paper round from her local shop. She starts work at 6.30 a.m. every day and finishes at 7.45 a.m.
3 Carol is 15. During the school holidays she is employed stacking shelves in her local supermarket from 9 a.m. until 4 p.m. with a break of an hour for lunch.
4 Dylan is also 15. He also works in a supermarket during the holidays but he is employed doing four 12-hour shifts from 10 a.m. to 10 p.m. with an hour’s break.
5 Eric is over school-leaving age. He has a milk round which he does every morning from 6.30 a.m. until 8.30 a.m.
1 Andrew is not aged 13 yet so generally he cannot be employed. However, his local authority has the power to make by-laws permitting children under the age of 13 to be employed in light work by their parents. If that is the case, Andrew’s employment is lawful.
2 We are told Brenda is 13 and therefore she may be employed. What she may do depends on what is specified by her local authority, but delivery of papers is usually permitted for 13-year-olds. However, no child may be employed before 7.00 a.m. and therefore Brenda is being employed illegally.
3 Carol is over the age of 14. It is likely her local authority permits employment of this type. We are told she is working during the school holidays and as such she can work up to eight hours a day with a maximum of 36 hours a week. Carol is working within these parameters and thus her employment is lawful.
4 Dylan is also able to work in a supermarket during the school holidays. However, we are told he is working 11 hours at a time which is more than the permitted eight hours. We are also told he has exceeded the permitted 35 hours a week. As such, we can conclude that Dylan’s employment is not lawful.
5 Although Eric is working in an occupation which may be prohibited by the local authority he is over the school leaving age. As such, his employment is not contrary to the terms of the Act.
There are some areas, such as babysitting, where there is no law on how old someone has to be. Children under the age of 13 are also able to take part in activities such as sport, advertising, modelling, films, television or theatre productions if local authority child performance licensing rules are followed. A young apprenticeship scheme has also been introduced for 14- to 16-year-olds.