Santa's little helpers?

Employers in the hospitality industry probably need all the help they can get once the merry-go-round of Christmas lunches and parties begins to push their work-force to the limit.

But the confused legal position covering the employment of helpers, especially children and pensioners, can create complications for recruiting companies.

What, for example, is the definition of a child for the purposes of employment law? A child is defined as a person under the upper age limit for compulsory education - which is 16. In general, it is illegal to employ a child under the age of 13, though local authorities can change this limit by introducing a special by-law.

Work at licensed premises, industrial undertakings and explosives factories, as well as street trading, peddling and house-to-house collections, are banned occupations for all children. However, most local authorities have made by-laws requiring child workers to have a permit, granted by the authority after a request from either the child's parents or the prospective employer - in some cases, both.

Most by-laws set out the minimum number of hours that can be worked on particular days, the rest periods that should be taken and the necessary provision of suitable clothing and footwear. Some also prohibit child employment by, for example, barbers and hairdressers.

More accessible

Local authorities are looking for ways of making the services of the young more accessible to employers than they are under existing rules. Most agree with the view that giving children a job helps ease them into full-time employment. If in doubt, a call to the local education authority should provide all the details you need.

• A Scunthorpe employer says she was keen to take on retired people, both to stand in for staff taking a break with their children and to deal with increased business. The problem, she says, is that both she and pensioners are put off by the rule that retired people's pensions are cut back by the amount of money earned.

This is very out of touch. That earnings rule has long since gone to the wall. Pensioners can earn what they like without their pension being in any way reduced. Provided they hold or obtain an exemption certificate from their local social security office then they need not make National Insurance contributions, but they will be subject to the PAYE rules.

Christmas is a time for being free of all the extra accounting work and other responsibilities of being an employer. This is a recurring dream for most people in small- to medium-sized businesses, but sadly it is one that inspectors of the Inland Revenue and other government departments do not always appreciate.

• A Staffordshire reader was planning to engage only staff prepared to work as self-employed people, making them "stamp their own cards", organise their own holiday arrangements and be responsible for their own tax payments. She can see that this would dilute the employees' loyalty to her, but wonders if there are other disadvantages she might have overlooked.

There is no legal definition of the terms employment and self-employment, but even during the season of goodwill the powers that be will not allow either employers or employees to make one up for themselves.

You can treat people as self-employed if they have a say in the way the business is run, risk their own money in the business, and are responsible for meeting losses as well as taking profits. Regard them in this way also if, in addition, they are free to hire and reward other people, dictate what work should be done, and provide where necessary the major items of equipment needed to do each job.

Treat as employees those who do the work rather than hire other people to do it for them, have to carry out instructions from above, are paid by the hour, week or month, and work a set or given number of hours a month.

Liability

You would do well to be cautious when taking on people who apparently have several jobs and who might at first sight be considered self-employed. The fact that applicants are self-employed in one job does not mean that they are self-employed in any other jobs they take on.

Ignore the guidelines and you could face liability for the total National Insurance contributions (both employer's and employee's) and the PAYE contributions that should have been made at the time.

One way to reduce both the risks and the paperwork is to hire trained staff from a specialist agency. This can be expensive, but for those of you with a built-in hatred of form-filling and fluctuating demands for assistance, the fees could be money well spent.