« Previous | Contents | Next »
Listen
Chapter Three Discussion
The primary aim of this report is to review the current legislation, policy and practice in Scotland relating to child employment. While it is recognised that these aspects are inter-related a division has been made between them in the body of the report. This section continues to apply that division, and discusses the findings under two main headings, legislation and policy and practice.
Legislation
This is the first systematic review of the legislation to be undertaken in Scotland. The findings highlight the complex nature of legislation in this area. Our focus on national legislation draws attention to the important role of local authority byelaws in defining what is, and what is not, acceptable practice. However, it is apparent that there are a number of problems with the present state of these byelaws. The most obvious example of this is that two authorities report that they have no byelaws, currently in force, relating to child employment.
A number of other authorities, while having current byelaws, also have a set of byelaws 'pending'. This is positive in that it shows that authorities are attending to the need to change their byelaws, update them and keep them current. However, it is apparent that 'pending' status can exist for a significant period of time. Based on our conversations with local authorities it is evident that this can lead to some confusion among administrators regarding their current responsibilities on child employment.
The issue of a time lag also arose when national changes were required. In 2000 the Scottish Executive introduced a statutory instrument which had the effect of raising the minimum age for employment from 10 to 13 years of age. All local authorities were required to amend their byelaws to ensure that they conformed to this new instrument. As we have seen, 57% of authorities still have the younger age specified in their byelaws.
The gap of four years suggests that there are some problems with the system. It is possible that the system for changing byelaws is complicated given the balance and checks that are needed between local authority and the Scottish Executive, hence the delay. However, given that a number of authorities have apparently not submitted new, or revised, byelaws to accommodate this instruction an alternative explanation may be that this area has low priority and little central monitoring.
The fact that some authorities have byelaws in place, which meet the needs of the 2000 statutory instrument, and that others have byelaws pending draws attention to the variations in the way that authorities respond to this issue. This variability also emerges when we consider the content of the byelaws.
At present legislation requires that authorities specify a list of prohibited jobs that children cannot do and a list of jobs that are acceptable for 13 year olds to do. In both cases we found local variability. This may reflect some unique aspects of the local economy, however, it also has the potential to confuse. For example, in the majority of areas the list of acceptable jobs for 13 year olds includes 'light work' in a café or restaurant. The Scottish Executive model byelaw, issued for guidance purposes in 2000, lists this as an acceptable job for this age group. However, one authority does not allow this type of work to be undertaken by 13 year olds in their area. In contrast other authorities add jobs to this list of 'acceptable employment'. In one authority 13 year olds are allowed to work in 'light work' in medical and dental surgeries. However, this does not appear on any other authorities list of acceptable jobs for 13 year olds. In comparing authorities such variability raises questions about the inconsistencies between byelaws, and the rationale for such variations.
Variation was also apparent in the information available on the number of hours that children can work and when they can work these hours. While one local authority included detailed information in its byelaws on the number of hours that could be worked and when they can be worked this was the exception. For the majority the byelaws contained the minimum requirement, namely specifying whether children were allowed to work one hour before school. If anyone wished additional information regarding the hours that could be worked they had to seek this elsewhere, for example in 'notes and guidance', leaflets or websites. While it is not a pre-requisite to state the hours that can be worked in byelaws (the Scottish Executive model byelaw excludes this information as well) it does appear logical that these should be readily accessible and consistently presented across authorities.
Even where information is available on the hours that can be worked, problems emerge. The majority of authorities specify the maximum number of hours that can be worked by children in any given week during vacation time. However, few specify what the maximum weekly figure is for term-time employment.
A fundamental principle of the national legislation on child employment appears to be the argument that local control of the legislation is necessary to accommodate regional variations. In this study we could find few examples of unique local variations. In one case an authority has developed a licence system for harvesting work, and it is possible to argue that this reflects the nature of the authority. However, other authorities, which also have an agrarian base, do not have such a system in place. Some authorities seem to tinker with aspects of the legislation in a way that creates variability but without any clear region specific justification. For example, in one case an authority has specified that children cannot work before 7.30 a.m. on non-school days, rather than the 7.00 a.m. watershed that is in the 1937 Act. All other authorities appear to be content with the 7.00 a.m. watershed.
It may have been possible to argue that there was a need for regional flexibility when the original legislation was introduced in the 1930s. It is less clear that in the 21 st century that such a high degree of flexibility is needed, or indeed helpful.
While there are a range of problems associated with byelaws in this area there are also some issues relating to national legislation. In 2000 the Scottish Executive indicated that it would be introducing a statutory instrument to ensure that Scotland conformed to European legislation with respect to child employment. The statutory instrument was designed to address the total number of hours that children could commit to part-time work during term-time. The review has found that one local authority at present complies with European legislation by specifying a 12-hour maximum for term-time employment. To the best of our knowledge no statutory instrument has been issued.
In England a statutory instrument has been issued, however, as Hamilton (2002) noted, few authorities have taken this on board and amended their instructions to potential employees or employers. From a policy perspective this raises a concern over the disparity in legislation across the UK. Such disparity is already evident in this respect and has the potential to grow in the future. As noted earlier the BRTF has submitted a set of proposals on child employment legislation in England. If the Westminster government accepted their proposals it is unclear what impact this would have across a UK context.
We have purposefully avoided a full review of the international legislation on child employment (see Hamilton and Watt, 2004, for a discussion of this issue). This does not mean that there are no issues to be addressed in the international context, rather that time and resource constraints have precluded this. Two brief examples indicate the type of issues that arise with international comparisons. First, the UNCRC indicates that states are responsible for ensuring that they protect child employees from economic exploitation. Hamilton and Watt (2004) present a persuasive argument that to comply with this the National Minimum Wage should be extended to cover child employees. By failing to do so a group of employees are being economically discriminated against because of their status as children.
The second example arises from the European Working Time Directive. It is argued that children should have the right to paid annual holiday entitlement, comparable to adult employees. This has been tested at an Employment Tribunal, which concluded that the Working Time Directive did not apply to children under 15 years of age (Note: this means that 15 year olds are covered by the Directive). This view is contested by Hamilton and Watt (2004) who point out that an appeal case, involving a child who claimed holiday pay from his employer and was refused, is currently in the Court of Appeal system. The outcome of this should clarify the interpretation of the Working Time Directive and child employees.
Clearly adding an international dimension to the discussion highlights the complex nature of child employment legislation. However, while there is a need to engage with the issues raised by adopting an international perspective it is clear that present domestic legislation needs attention.
Policy and Practice
The majority of local authorities have adopted a permit system to regulate child employment in their area and records are kept regarding the numbers issued. However, the range of information that is collected is limited. While permit systems are common there is a degree of variability in the nature of the permit, who should apply for it and the number of signatures that are required. It is difficult to escape the conclusion that the present permit systems are rather cumbersome and potentially time consuming procedures.
A counter to the idea of the bureaucratic nature of the system would be its effectiveness. There are at least two grounds on which effectiveness can be queried. First, the monitoring systems within local authorities are at best minimal and may be completely absent. Only one authority indicated that they had a monitoring system involving Trading Standards officers. Second, permit systems could be viewed as effective if significant numbers of working children had the necessary permits. The results from this study shows variability in the number of permits issued between areas. However, there is reason to question whether the numbers registered are related to the numbers working.
Previous research in Britain has shown that the majority of children do not have work permits (McKechnie & Hobbs, 2002; McKechnie & Hobbs, 1997). For example, in 2002-2003 the Child Employment Research Group at Paisley University was involved in a project surveying S3 pupils about their part-time work (to maintain confidentiality we are unable to reference this study). In total 146 pupils were working at the time of the study, the majority should have had a work permit. The local authority records for this area indicate that they had issued a total of less than one third of that number of permits. Even then this does not represent the size of the gap since the study outlined above involved 25% of the schools in that area and focused only on the S3 pupils.
Such problems are not unknown to those who administer the system. As we can see from our interviewees' comments, many are aware that numerous pupils, engaged in part-time work, fail to register for permits.
It is possible that part of the explanation for the low registration figures is that the application process is too removed from children. Some authorities have adopted a policy of devolving their permit system down to the school level. In theory this might improve the uptake level. There is some evidence to support this view. McKechnie et al. (1994) found that in one area permit levels were running at approximately 1:4, in contrast to the standard 1:10, amongst working children. The area involved had a school based permit system. However, it should be noted that there was considerable variability between schools in terms of the numbers registered, suggesting that individual teachers were motivated to 'push' the issue in their school.
In the present research, a number of local authorities had adopted a school based system. However there was no evidence that this was driven by a specific policy to shorten the application system. It was also apparent that few authorities collated any central records on part-time employment. Rather the impression gained in some cases was that for some authorities devolving this issue to schools resulted in an 'out of sight, out of mind' situation.
The researchers found that across all authorities that there were few prosecutions or warnings issued regarding byelaw infringements. Previous research has shown that the majority of children are working illegally across a range of criteria, eg hours worked and job type. Therefore the low uptake of permits and the lack of any monitoring procedures are the most likely explanation for the lack of warnings and prosecutions.
We have already suggested that the reason for the poor uptake of permits could be explained by the nature of the application process or the centralised process. A further explanation may be a general lack of awareness about the legislation. Over a period of time researchers have shown that children, parents and employers are largely unaware of the legislation in this area. Unfortunately less than half of the authorities produce any literature on this subject. A total of 14 authorities do produce leaflets or booklets which outline the acceptable and unacceptable aspects of child employment. However, even where information is available the dominant model adopted by authorities is a re-active one, where they respond to requests for information. Few authorities adopt a pro-active stance in this area.
The fact that only a small number of authorities viewed themselves as 'pro-active' is probably related to resource issues. As Table 5 shows staffing levels in this area are typically low and for the majority of staff child employment is a minor role for them. It was also apparent that in some cases responsibility for this issue cuts across departments. This contrasts with a growing trend in England. It is not uncommon to find local government appointing staff under the title of 'child employment officers'. For example, Cumbria County Council has recently appointed two such staff. This trend may continue to grow in England given that OFSTED now include child employment as a topic in their review of an authorities education policy.
The nature of this research provided a unique opportunity to interview local authority personnel who deal with child employment as part of their remit. In summarising their views on the effectiveness of the present system it is evident that they are largely negative. For the majority the present policy and practice within their authority fails to protect children, draw attention to legislation and provide information on child employment. A small minority have a more positive perception of the system. This is based on the assumptions that children are registered for employment. As we have shown the majority of children are not registered for work and are therefore outside of the system.
A number of individuals were frustrated by the present state of the system in their authority, indicating that the issue is under-resourced and given a low priority. However, based on their experiences the interviewees had a number of solutions to propose.
A high percentage of those interviewed, 48%, were of the opinion that the permit system was fundamentally sound, it was the practice that needed attention. This level of support for the present permit system is interesting since a central plank of the BRTF position is that the permit system should be replaced by an employer registration system, thereby shifting the emphasis on registration from the child to the employer. In the present survey one interviewee proposed this but indicated that this would raise a different set of practical issues. It could also be argued that the issue of checks on employers, for example Criminal Records Board checks, and the additional costs involved may result in a reduction of employers willing to employ children.
For the majority of interviewees the central concern was the lack of awareness of legislation in this area. They proposed that the emphasis should be on raising the profile through advertising and some suggested that this should be a national initiative involving the Executive. It was also recognised that any system is only as good as the level of monitoring that accompanies legislation. For a number of interviewees it was important that some effort is directed towards developing an effective monitoring system. However, it was recognised that there was a danger inherent in this and that a balance needed to be struck to avoid driving such employment underground.
A small number of interviewees suggested that in raising the profile of child employment legislation it should be recognised that an important audience were children themselves. In effect they proposed that there would be a need to 'sell' such legislation and procedures to children in order that they would perceive the benefits and engage with it. One way of achieving this would be to have effective consultations with young people in the construction and content of legislation that affects their lives.
Raising the question of some formal recognition of school pupils' part-time employment produced a mixed set of responses. While some of those in favour of recognition based their position on the value of the experience of employment a number of those with positive views adopted a more pragmatic position. In their view recognition was a good thing since it would mean that the present systems would have to be overhauled and replaced by a far more structured child employment system.
The more negative responses to the idea of recognition expressed the view that in their opinion children's jobs were menial and low level. In their view there was little merit in recognising such activities. One respondent's negative position on recognition was based on their belief that children would not want to engage with such a system, for them the motivation to work was for money, not qualifications.
Respondents in both of these camps drew attention to a raft of practical issues. Consensus emerged on the impact of such a change in policy. For the majority of respondents recognition would increase the levels of children registering for permits. Present levels of resource, particularly staffing levels, would be unable to cope with such an increase.
However, it could be argued that the issue of resources are not simply linked to a hypothetical recognition system. The argument that increased resources are required could be applied to the present situation. If staff are suggesting that an increase in numbers registering for permits would create problems there is an implicit acceptance that present resource levels could not cope with all of the children who are presently working, if they decided to seek work permits. The question of resources is central to any discussion of this topic irrespective of whether there is a move to recognise children's part-time work or maintain the status quo.
Methodological Issues
A major strength of this research is that all local authorities are represented in the data set. While it was not possible to carry out interviews for all authorities the database underpinning this research has been able to compensate by drawing on a range of information sources for all authorities.
The interviews were carried out with individuals within the authority who were responsible for child employment. However, the views they expressed are the views of the individual not the authority. More detailed discussions with each authority would be required to gain the 'collective' view on the issues covered here.
It is possible that some relevant material may not have been accessed. Each authority was asked to forward any relevant literature that they had on this topic. In addition the researchers independently gathered relevant material. However, it is worth noting that any material that has been missed does not have a high profile in the authority, nor is it necessarily easy to access.
Conclusion
For a number of years researchers interested in child employment issues have raised concerns regarding the legislation in this area. This review indicates that there is evidence to support the view that the current legislation needs to be reviewed. Decisions need to be taken regarding the rationale for managing this legislation at a local level and the philosophy underpinning the legislation. The present review highlights the fact that this issue is of low priority for the majority of local authorities. One interviewee suggested that it was the 'Cinderella area' of local government in terms of attention and resources. In commissioning the present research on school pupils' part-time work, the Scottish Executive could be providing Cinderella's long awaited 'invitation to the ball', allowing for a comprehensive review of legislation, policy and practice in this area.
Notes about legislation
1. The legislation on the employment of children is complicated by the fact that regulations apply to children involved in a wide range of activities. The most problematic issue relates to young children involved in entertainment and public performance. The national legislation applies to all forms of work and includes references to child performers.
In this report we have excluded discussions of legislation as it applies to the area of performance/entertainment. There are two reasons for this. First the main research focuses upon the employment of secondary school aged children from S3 to S6. The majority of this employment is not in the area of performance/entertainment. Second, a number of local authorities in practice separate the monitoring of these different activities.
2. The legislation states that the minimum age for employment is 14 years of age. Local authorities can, if they wish, allow 13 year olds to work, however, this must be stated in the byelaws. Hamilton (2002) argues that the majority of authorities have opted to allow 13 year olds to work and have by default created the 'norm' of 13 years of age being the minimum age for part -time work.
3. Two other amendments were included in this Regulation: (i) that byelaws are required to specify the hours, days and places where children may take part in street trading. This information is additional to the existing regulations that children must be 14 years of age to undertake his work and employed and supervised by their parents (ii) children must be at least 16 years of age and over compulsory school age before they can take part in dangerous performances. The latter change impacts on the 1937 Act and does not affect byelaws.
4. The issue of recognition of children's part-time employment is also covered in the interviews with members of SCEIN (see Appendix 11).
Addendum
Since the collation of the information for this report the Scottish Executive has introduced a new statutory instrument. As of April 2006 the national legislation on the maximum number of term time hours a pupil can work has been reduced from 17 to 12 hours per week. This regulation applies to those pupils who are still within the period of compulsory education.
The introduction of this statutory instrument brings the national legislation into line with the EU Directive of 2000. Local authorities will now have to ensure that this new maximum figure is reflected in their documentation relating to child employment.
« Previous | Contents | Next »