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au pairs and maternity pay

(19 Posts)
harrietthespook Mon 04-Jul-11 17:51:49

Can someone (nanny nick/frak/mr A) please remind me why au pairs aren't generally eligible for maternity pay and what I could put in my contract with ours next year to make sure she knows this. Also statutory sick pay.

Also - can someone suggest wording to the effect of the room is for use only during the term of her employment, not after she's gone on maternity leave.

Don't ask. But I am feeling like I need to cover this base for various reasons.

nbee84 Mon 04-Jul-11 18:20:48

I think it's because they don't earn enough money to pay ni - I'm sure one of the others will be along this eve with a more detailed explanation smile

StillSquiffy Mon 04-Jul-11 18:40:12

1) SMP kicks in only if they are paying tax and as they usually earn less than £100 per week, this normally doesn't apply. Anyone AP earning more is entitled to SMP

2) Ditto SSP

TBH I would stay silent on the room thing unless she is already kicking up about it because you can't unilaterally alter the contract without her claiming discrimination and she is almost certainly entitled to accommodation during maternity leave. If your contract has a rule on no overnight guests you may be able to argue that she is not entitled to keep the baby there once born but it is a very very grey area and if she indicates that she plans to do this then you will need good legal advice.

I really hope that she has family or somewhere else to go to for support when baby arrives, and that she hasn't been earning more than £100 a week???

StillSquiffy Mon 04-Jul-11 18:40:49

I'm itching to ask, by the way.

fraktious Mon 04-Jul-11 18:43:14

Not earning over LEL = not eligible for statutory pay

I have 'axc

fraktious Mon 04-Jul-11 18:47:25

Sorry - BFing and posting not working to well as DS has reached the squirmy stage.

I have 'accommodation is provided for the duration of the contract but is not available for use during maternity leave or after the contract is ended'.

I want to know why as well!

Strix Mon 04-Jul-11 18:56:13

On the off chance that this hypothetically pregnant au pair does not yet work for you, may I sugest you write a fixed term contract. If you do, you won't be lieable to give her anything after the expiry date.

harrietthespook Mon 04-Jul-11 19:42:37

This is the Sept one. She's engaged. And he's coming to the UK to live as well. She has been working out how to tell me. She is young though. BUT I think it would be daft not to give this one a full on live in nanny contract. Esp if her plans change and they want to stay on I think we need clarity.

She's on £70 p/w and it is fixed term - although being DAFT I didn't re-iterate that in the inviation letter. So, I have some housekeeping to do as a matter of urgency.

Strix Mon 04-Jul-11 19:52:40

Just state in the contract that it is fixed term.

Incidentally, I also give my au pairs the same formal employment contract I gave to nannies. I just treat them like employees with full holiday entitlement (current au pair I think was pleasantly surprised when she asked if her holiday was paid), SSP, etc. The paperwork has never come into it because I have always just paid sick nanny / au pair as if she was at work. The only difference if I don't have to submit anything to the taxman... YAHOO!!!

Oligo Mon 04-Jul-11 20:12:38

Would not be earning enough to qualify for NI Lower Earnings limit at £70 gross.

However I would feel really guilty if I put a pregnant/baby and mum out on street if they had no where else to go! espcially if on a 'cultural/one of the family' wage and job title.

Regardless of your wording in contract if it turns out employment rights mean she entitled to stay in the room for a time the contract can not override this, just like it can't overide paid holiday entitlement. And although it makes your feelings clear I wonder if it might invalidate contract.

mranchovy Mon 04-Jul-11 21:07:24

You need to be paying at least £102 per week for them to be eligible for SMP, although they may get Maternity Allowance if they earn less than this (this is a state benefit that need not concern you as an employer).

The threshold is the same for SMP.

You do however need to give maternity leave, and as Squiffy says her entitlement to her room during maternity leave is a grey area - there are no words that can protect you against this, and it is probably not a good idea to include any that attempt to.

Basically if she gets pregnant you are going to have to negotiate what happens next, probably with the assistance of a lawyer.

harrietthespook Mon 04-Jul-11 21:58:32

I know one person this happened to in the past year. They sent her home. But the boyfriend was in the home country. Frak I mentioned this to you not long ago.

I guess this is really no different than if we'd recruited a nanny in a serious relationship in terms of our legal obligations. Except she wouldn't qualify for the same benefits b/c of pay. i'll deal with the dates of her contract and note the bit about being below the threashold for ssp and mat pay.

fraktious Tue 05-Jul-11 02:56:52

I'd have thought that if she's not there to do the job for a period of time and the room is required by the replacement it wouldn't be unreasonable to attach it to business use. I suppose it's difficult with the NMW exemption because if, hypothetically, the accommodation weren't provided she would earn more and therefore get SMP. Your accommodation is part of the salary (mine, frustratingly isn't and can't be but does mean I can provide it for business only).

Probably best to cover yourself indeed.

Lizcat Tue 05-Jul-11 09:47:41

As others have said the accommodation is very difficult. In the industry that I work in (not childcare) accommodation is part of the standard package and as a benefit we have to continue to provide this accommodation during maternity leave.

harrietthespook Tue 05-Jul-11 09:52:17

I don't want to get too bogged down in hypotheticals (I clearly spooked everyone at the start with my OP) but I can't see how a family with a live in employee who also needs childcare to cover a maternity leave can effectively be required to house the employee on leave and the current employee.

But thanks everyone for clearing up the basic point about at which salary point all of those benefits kick in.

Strix Tue 05-Jul-11 10:28:36

My understanding is that if you write a fixed term (say 12 month) contract, then all of your obligations cease when the 12 month period expires. So if you hire an au pair, who 6 months into the contract announces her pregnancy and is due in 6 month, she would have the baby when the contract ends, and you would have a room and a job open for the next candidate.

Ther are two type of fixed term, if I remember correctly: one that ends at a specified time and the other ends on a specified event (i.e. children going to full time school).

If you write a fixed term contract and renew it year after year after year after year, then the employment will likely be considered permanent. But, one 12 month contract should be fine to be considered truly fixed term.

harrietthespook Tue 05-Jul-11 10:38:39

with the last two au pairs I did this anyway - state the dates she's expected to be with us. I have done this for entirely different reasons in the past - more to underscore that we are depending on someone to stay with us for the full school year.

I THOUGHT I had put the dates in her sodding letter until I looked at it again yesterday, but no.

Strix Tue 05-Jul-11 10:41:56

Does it really matter that the dates aren't in the letter? Surely the employment contract is the governing document. Perhaps it is worth stating in the contract that in the case of discrepancies the contract takes precedence over the letter.

harrietthespook Tue 05-Jul-11 10:45:44

It's more my attention to detail that I'm frustrated with. It's an important point. She could leave anyway though I guess. I need to chill now.

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