Is an Au Pair an Employee?

[Metrobaby]

Can anyone confirm this as it seems to be a very grey area to me.

A lot of agency websites state that an Au-Pair is not an employee, however, on the Chilminders, Nannies, Au-Pairs, etc board there have been several threads discussing employment areas such as termination and holidays and this is where there seems to be the greyness.

EG. Several agencies state that an Au pair is entitled to only 2 wks paid holiday in a year and usually they can only take this after 6 months service. However DadInsteadofMum provided a link, which implied that au-pairs are entitled to the statutory minimum 28 days per annum (inc Bank Hols). Also there was another thread on that board where an au-pair was asked to leave without given full notice, yet another thread where an au-pair was actually threatening her family with court action when they gave her notice to leave.

Would be grateful for any advice as I want to give my au-pair notice but don't want to be at risk of court action. I should state that although I have a contract, neither myself or my au-pair have signed it.

[flowerybeanbag]

I wouldn't rely on agencies at all. As far as I can tell an au pair would class as an employee, yes, so would be entitled to 5.6 weeks holiday, pro rata if not employed the whole year, and the correct amount of notice, usually a week.

How long has your au pair been with you?

[hatwoman]

I think - but am not sure - that this is down to confusion as to what exactly an au pair is, or, rather, what it is that makes someone an au pair.

iirc some au pairs are legally au pairs - that means they come to the UK on an "au pair" visa and the work they do, the amount they can be paid, and their terms (inc termination) are governed by the rules associated with this sort of visa - these are probably the rules the au pair agencies are refering to.

however plenty of people employ someone who doesn;t need an au pair visa (either because they are UK citizens or from other countries in Europe and don;t need any sort of visa to work in the uk) to do a job that looks a bit like the kind of work au pairs traditionally do - light housework, a few hours a week of childcare. these people would be employees protected by Uk and European laws on employment.

so the question you really need to ask is not "is an au pair an employee" - because it depends on too many things. The real question is what protections is your au pair entitled to. It will depend on lots of things including where she's from, what kind of visa (if any) she has, what hours she does, how long she's been working for you, why you want to give her notice etc etc.

[Metrobaby]

Flowery - she has been here 2 weeks - but I don't think she is adjusting to life here.

Unfortunately I had to have a chat with her on Wednesday as she did barely any of her duties. My long thread about it started here www.mumsnet.com/Talk/childminders_nannies_au_pairs_etc/820564-How-long-before-you-know-your-AP-is-a- good

Her duties have been clearly outlined and I have taken her through them dozens of times - but earlier this week things went rapidly downhill and I had to have a chat with her. the chat went well and she seems to have done better yesterday. I'll see how she does next week, but as i don't think her heart is in it or perhaps she is missing home, i'd like to give her notice. The thing is that she seems like a sweet girl and I think if I gave her notice because of her failure to perform her duties properly as expected it would break her.

Is there anything I can do?? The thought of putting up with her until next year fills me with dread.

[LadyMuck]

There has been a European case which confirms that an au pair is a "worker" for the purposes of EU directives eg working time directives.

There is no longer such a thing as an au pair visa - the visa framework changed earlier this year I think. So the number of countries where a potential au pair can come from has widened.

Not sure that I can help on the specifics of the question of giving notice.

[hatwoman]

I had a niggling feeling (which is why I said I thought etc) that there might have been changes to the au pair visa system. I guess what that means is that an au pair working in the uk is entitled to the same protections as anyone working in the UK? but - as with any job - short hours, temp contract, recent start date will affect the protections to which she is entitled? iyswim.

[Metrobaby]

Hatwoman - she is from an EEU country and so didn't need a visa. She is only down to do between 25-30 hours a week mainly childcare with very light housework as we have a cleaner too

[flowerybeanbag]

Just give her notice, as long as no longer notice period was agreed you only need give a week. You could either literally tell her a week before or (I would) pay her a week's money instead. She does have employment protection, possibly technically a worker, possibly an employee, don't have time to look into it properly now, but either way, during her first year of employment you can dismiss her whenever you like as long as you give the correct notice period.

In terms of what reason you give, you could just say you feel it's not working out, or make something up about have changed your mind about your own personal needs, if you want to protect her.

[hatwoman]

in that case she's entitled to all the protections any worker would be entitled to (which, given, how long she's been with you, may actually amount to not much at all) does she have a trial period built into her contract?

[hatwoman]

cross-posted with fbb.

[Metrobaby]

No - I didn't put in a probationary period into the contract as such - but did say that after 2 months of good service that she would be entitled to a pay rise. Not sure if that would construe as one.

Thanks for the advice on notice period - however in my unsigned contract I have stated 3 weeks. Given the contracts are not signed by either party which one shall I do?

[flowerybeanbag]

Why have you not signed it out of interest? Has she been issued with it yet?

As it's only been a fortnight and neither have signed it, you could probably get away with a week.

Unsigned contracts don't necessarily mean they don't apply, if for example the employee is issued with the contract, doesn't get round to signing it but continues to work aware of the terms and conditions.

But if you've not signed it either and as it's so early on, you should be fine if you only give a week.

If you want to be generous and are feeling guilty, you could honour the 3 weeks anyway.

[Metrobaby]

She was given the contract on 2 days after she arrived. She was aware of her duties and our requirements and hours etc before she accepted the role of our au-pair.

I didn't sign the contract for 2 reasons:-

1. I wanted to give her chance to look at it, understand it and change it if needed.
   
2. After a few days of her being with our family she never really performed well, and hence, I didn't want to commit myself in the end either.
   
   I would prob like to give her 2 weeks out of courtasy and it would be mid way between the two.
   
   Would I have to pay her accrued holiday too? If so, how is this calculated?
   
   Also - for the future - what are the pay arrangements if she is sick? Is there a standard employment contract I could follow for the next au pair? I want to make sure I am not compromising any rights inadvertantly.

[flowerybeanbag]

2 weeks sounds fair.

She would be owed holiday theoretically, but only a day or something, so what you could do is pay her in lieu of notice, but actually terminate her employment a couple of days after the conversation, although not requiring her to work; that way she's getting her holiday, as well as not having to work her notice.

If she works 5 days a week she gets 28 days a year, and you can work out how much she's accrued by week or month by dividing the total by 52 or 12, then multiplying by the appropriate amount of weeks/months.

In terms of an employment contract, I'm sure if you ask on the Childminders, Nannies etc board someone will be happy to share the contract they use for their nanny.

For sick pay, you don't have to pay anything if an employee is off sick unless he/she is off for more than 3 days, in which case SSP might kick in.

[Metrobaby]

Thanks flowery - just to be clear though - are you saying her notice period can consist of holiday?

Eg. If I gave her notice today (i'm not btw) - she's been with us 2 weeks now and she gets 28 days over the year. Therefore do I pay her:-

a) for 10 days (9.5 days notice + .5 days hol included) or
b) 10.5 days (10 days notice + .5 days hol on top) or
c) 12 days (10 days notice + 2days hol accrued over the entire notice period)
d) or something else

Could she sue me for unfair or constructive dismissal if I get another Au-Pair?

[flowerybeanbag]

yes her notice period can consist of holiday. As the employer you can tell her when to take her holiday if you want to, and that includes during her notice period.

Just pay her 2 weeks money, and give her a letter saying her employment is terminated on x date to allow her to take all her holiday.

Or you could say that her employment terminates in 2 weeks time but you are not requiring her to work during that time. She will still be employed but will be taking all her accrued holiday during her notice period plus some more time off as well.

she can't claim unfair dismissal in the first year unless there is some kind of discrimination involved, such as you are sacking her because she's pregnant or anything like that.