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Can my ex au-pair take legal action against me?

(74 Posts)
Rebeccash Sun 26-Apr-09 22:39:26

Hi there

I am a lurker on this board and recently had my first ap who lasted 8 weeks. I gave her one weeks notice to leave after putting up with : her doing no house-work (despite outlining clearly what needed doing and giving her a time-table: her role was only 2 hours childcare per day, the rest some house-work), her being ill (and paid) for 2 weeks but well enough to go out clubbing a number of times during her sick leave, having her sister to stay for a week as holiday (not arranged: she was meant to still cover childcare but didn't) and leaving all of their mess for me to clean, having male visitors over when I asked her not to and generally not being any help. So whilst her sister was here i told her she must have this week as unpaid holiday as she clearly had no intention of doing any work and they ate me out of house and home. Following a couple of heated discussions later in the week i gave her one weeks notice to leave and offered to pay her airfare to France which she refused. Two days later she left whilst i was at work without informing me and took all her things. now she has contacted me saying she has been in touch with ACAS and I owe her the money from when her sister was here and a months money as notice. I was under the impression au-pairs were not employees and I had acted reasonably. She says I left her homeless and should pay. (I offered her a flight home but she wants to stay in the UK).

Please advise, very stressed by it all and having to juggle work/childcare

nannynick Sun 26-Apr-09 22:43:26

What was the contract of employment? What notice period was in that? If there was no written contract, was there any verbal discussion about notice period for if they wanted to leave?

Rebeccash Sun 26-Apr-09 22:47:12

Hi there
No written contract: just house-rules. As she had only been with me 7 (ish weeks) I assumed 1 week was adequate: her behaviour meant i couldn't reliably expect her to look after my son so a month seemed excessive. WE discussed it at interview and said a week initially, longer if things went well.

ingles2 Sun 26-Apr-09 22:53:20

Oh my good God!! Cheeky mare!
Well she doesn't have a leg to stand on with no written contract. Did you get her through an agency or an au pair site?
Don't worry about it, really she's trying it on. Send her back a letter saying that she came to you as an au pair/part of a language exchange programme iand had board and lodging in return for housework and pocket money. outline your terms again, and that after 7 weeks she was dismissed for gross negligence. Make sure your outline your fair offer to pay for her flight home. Does she have a ACAS reference number? If so send them a copy of the letter as well.

nannynick Sun 26-Apr-09 22:55:54

ACAS: How much notice of termination should I get?

"Your employer must give you:
* at least one week's notice after one month's employment
* two weeks after two years
* three weeks after three years and so on up to 12 weeks after 12 years or more
However, you and your employer will be entitled to a longer period of notice than the statutory minimum if this is provided for in the contract of employment."

So as she had been with you for more than a month but less than two years, a weeks notice is fine.

So the notice of termination isn't the issue here. You gave a weeks notice.

She left during that notice period, so I feel that would go against her if it ever got to tribunal.

>having her sister to stay for a week as holiday (not arranged: she was meant to still cover childcare but didn't)

That is the week she is wanting payment for. How much are we talking? Is this something she will really try to chase via tribunal/court system?
During that week you say she didn't do any work - can you prove that in any way. If so, refuse to pay and let her see how far she can get via the court system... I don't think she will get that far myself - but I'm not an employment law specialist.

FluffyBunnyGoneBad Sun 26-Apr-09 23:00:33

How long ago did you get rid of her? I dount she's an employee but an employee has to register a claim within 3 months. I'm guessing you/she paid no tax or national insurance? Not an employee. The contract is irrelevant I'm afraid, in a tribunal (she shouldn't get this far) they will make one up if there's no contract.

nannynick Sun 26-Apr-09 23:05:57

Someone can be an employee under employment law, whilst not be an employee under tax law. At least that is how I understand it. As the person in question is from an EU country, I feel it is best to assume at this point that the person would be classed as an employee, if it ever got to tribunal.
As there is no written contract, I agree that the contract is irrelevant - tribunal will assume that there was some kind of verbal agreement in place. All correspondence between you and the aupair may also be used to create a contract. At least that's my opinion.

Rebeccash Sun 26-Apr-09 23:09:36

Thanks for the reassurance guys, it has really been stressing me out. She said she had contacted ACAS (which i doubted and def doubt now) and i should pay one month and a week (£70) for when her sister was here. I can't really prove she didn't do any work but as they were out until 2am every night she didn't get up in time to take him to school and was out so didn't collect him. She left a few days ago, she informed me of the dispute by email but refuses to give me her forwarding address. I really was nice to her (honestly!): she had to look after one 7 year old ds before and after school (I am a teacher) for an hour either side and do some cleaning/ironing (which never got done: she hoovered once!). I paid her £70 per week and was probably over-nice to her. She was really shocked when I gave her notice and thought she could live in waht she called 'a house-share!!!!' for as long as she wanted. As a recently single mum I thought I was going mad

Rebeccash Sun 26-Apr-09 23:10:34

Sorry I got her through Au-pair World and she has not given me ACAS reference number

Jianning Sun 26-Apr-09 23:11:09

Why not have a look at the Citizens Advice Bureau's website or ring your local bureau. They will definitely be able to help on this matter.

RockinSockBunnies Sun 26-Apr-09 23:12:22

Don't worry - an au pair is not an employee and you are not an employer. They come to live 'as a family member' and to help out. You had no contract with her, you have her notice, she honestly doesn't have a leg to stand on.

She really sounds as if she's trying it on - ignore her (and better luck with any future au pairs!)

nannynick Sun 26-Apr-09 23:15:05

Send her the link to the ACAS website I posted earlier and say that she was given a weeks notice.

I have posted the main query over on Legal board, so with luck an employment law expert mumsnetter will see that and come and post on this message thread - their more advanced knowledge of UK law will hopefully give you more reassurance.

Flibbertyjibbet Sun 26-Apr-09 23:17:59

I don't have aupairs myself, but my friend had a similar experience a few years ago. She thought it odd that someone from another country would be so clued up as to contact ACAS etc - I know I wouldn't in another country.
My friend got on to the agency to demand their finders fee back and it turned out that this aupair had gone through a few families, being ultra lazy and taking the pee till each of them sacked her and then demanding a months pay. Some of them paid it too.

What does aupair world have to say about her? Did you tell them of your reservations when it first became apparent that she wasn't up to scratch? Did you pay them any fees and have you asked for them back as she was obviously so unsuitable?

Rebeccash Sun 26-Apr-09 23:19:09

Thanks so much.
It is really nice to have reassurance and support.

Rebeccash Sun 26-Apr-09 23:24:57

I have not contacted au-pair world as it is an au-pair finding site not an agency. Maybe its the same person??!!! I just feel really upset by it all.

nannynick Sun 26-Apr-09 23:27:16

Aupair World - Terms and Conditions
"2.2. Contrary to classical aupair agencies “Aupair World” doesn’t act as an agent. The actual procedure is made by the registered user i.e. registered users have to get in contact with each other and arrange further procedures."

Looks to me as though Aupair World is not an agency, just a means of connecting parents with au-pairs - so similar to a newspaper classified advert.

ilovemydogandMrObama Sun 26-Apr-09 23:43:52

what you need to do is to send her a letter. Do a time line of the history/agreements, such as, 'when we first met, we agreed that you would blah blah blah...'

Then give a general outline as to how that agreement broke down, including your willingness to pay for her airfare back to France, her response etc.

Say that you are willing to discuss the situation with her and suggest that she: a) calls you at such and such a time to schedule a time or b) gives you an alternative suggestion re: venue -- be sure and give her a deadline, such as, 'if I don't hear from you within 2 weeks....'

RockinSockBunnies Sun 26-Apr-09 23:50:30

I honestly wouldn't do anything - leave her to try and prove whatever weird allegations she's throwing around. Insist any communication is done in writing if she gets in touch. Call her bluff!

frannikin Mon 27-Apr-09 09:17:01

APs are now classed as employees because their visa status doesn't exist anymore - they are live in domestic employees therefore exempt from minimum wage etc so you needn't necessarily worry about tax/NI but they have the rights nannynick pointed out re: notice etc. An EU citizen would have had those rights before the rules changed in any case.

As far as your AP is concerned she can talk to ACAS/the CAB all she likes, because you were in the right following the dismissal procedure. The only thing you may run into trouble with is the unpaid holiday - as an employee she is entitled to a certain amount of holiday (pro-rated for PT work) but I doubt in 7 weeks she accrued enough for a whole week worth.

In future it may well be wise to have a written contract outlining exactly what the notice is, what the pay is, what the duties are etc. It's a pain but it provides something to fall back on should you ever have this kind of problem again, which I obviously hope you won't!

DadInsteadofMum Mon 27-Apr-09 09:36:27

Frannikin is correct, they are employees (whatever their tax status) and really should have a contract of employment (I tweek the one on APW which is based on out of date legislation but is close enough).

In addition to what Frannikin says (which is all correct) the only other thing she can do is cause you hassle. Your best defence against this is to have an accurate record of everything that happened. Write everything down now, then in the unlikely event that anybody took her seriously (and I don't think anybody will) you have a full and accurate record of which one of you was being reasonable and who was being unreasonable.

Two points fro the future, always have a contract, my house rules say no guests in the first two months, until they are settled in.

willowthewispa Mon 27-Apr-09 12:36:45

I think au pair employers really leave themselves open to problems when they cling to his language/cultural exchange model - surely it's much better for both sides to have a clear contract and treat it as employment?

Rebeccash Mon 27-Apr-09 12:45:41

Yes I realise this now and had intended to draw up a contract but was treating it as a trial period to see how we got on. Foolish now I realise and I am paying for it in stress and upset.

nannynick Mon 27-Apr-09 13:50:48

You learn from mistakes, so keep in mind that next time you have an au-pair/mother's help, or any other domestic employee, you will be so much more knowledgeable.

Question now is what to do about your current situation. You could just ignore her, you could write to her outlining reasons for dismissal and include any outstanding payment you feel is owed. Or you could pay in full what she wants, to get her off your back.

Have you already paid up to and including the notice period (even though she did leave early)? If you have... then ignore her.

esselle Mon 27-Apr-09 14:15:47

Have you got your house keys back from her? I hope so - you don't want her coming in when you aren't there.

She sounds cheeky enough!!

HSMM Mon 27-Apr-09 14:54:36

You could always try sending her a bill for her sister's food and accommodation ?????

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