Aupair-surely starting work at 7am shouldn't mean you get up at 7am?????

Sorry not terribly clear, the Slovak girl is someone I know here in Paris, currently an au pair, who is going to the UK next for the summer - 6 weeks so more than a month - and she asked me about the WRS, assuming I would know by virtue of being British I suppose! As it happened I wasn't sure whether it was still going etc. so told her to contact the Home Office, which she did and was given the advice I relayed above: better try register and not have to than not bother and get caught. Hence my interpretation that they don't know what they're talking about themselves.

Technically (legally) Western European au pairs were employees but most people only made that connection if they paid over the tax threshold. The problem is people really don't know about employment law because they don't consider themselves employers. As DIOM points out employment status is not determined by NMW. Also au pairs used to have a legal right for classes to take precedence over work (work had to be arranged around classes not the other way around) and that's no longer the case so at least one thing has changed.

i dont know since when aupairs from western europe were able to come to the uk without any visas. but i am sure its more than 10 years and never during this time they were classed as workers. absolutely nothing has changed for them so why should they be classed as workers now?

re wrs - it has been announced in april that wrs will continue until at least 2011 (see here www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/Government-keeps-work-restrict )

i agree that in doubt its better to send the registration and get it rejected. but i dont think there is the doubt - the letter is not to a slovak girl (how did you get that impression? ;)) but an email sent to me by british aupair agencies association explaining what guidelines they have from home office (ok i know its called uk border agency now). surely if aupairs had to register everyone would know about it - wrs has been operating since five years ago.

Not "workers" for the purposes of WRS maybe, but still employees under employment law - qualification for NMW is not a test for employee status.

catepilar that letter really worries me if these poor au pairs are not considered as workers. What about sick pay and holidays? It's a legal minefield waiting to happen. The minimum wage point is very concerning as there are nannies working for less than NMW. Are they not workers either? And re: the WRS techically it should have ended at midnight on the 30th April this year but noone really seems to know whether it has or not, again better safe than sorry and try to register only to be told you don't have to, wouldn't you agree? And that is advice from the UKBA to a Slovak girl about to go an au pair in the UK so they don't even seem to know themselves!

I think we may have to agree to disagree on this point but I would advise anyone with an au pair to err on the side of caution and stick to the letter of the law.

fP - as i said you dont need to copy the home office website for me. and if you need see why i am telling you that aupairs dont need to register here is the letter from bappa

Have some more information about WRS scheme from a colleague -
The WRS scheme did not apply to au pairs as they were not considered workers. BAPAA received a home office letter confirming this. We presume it still wont apply now because au pairs earn less than minimum wage so cannot be classed as workers!
A contact from the UK Border Agency said WRS scheme should finish in March - you could try the Home Office Border Agency website or their telephone helpline for more information.

Although there is no Aupair visa any more the Au pair scheme does still exist as far as BAPAA is concerned ? it is just the visa that has disappeared and become Youth Mobility visa.

But yes, I am hardline. It comes from doing advocacy and advice work!

It's difference between a steel tube wrapped in cotton wool (a clear expectation and fluffy edges) and cotton wool which is suddenly shoved into a steel tube (fluffiness which turns into legal hardball when things don't go right).

The link I provided to the UKBA says otherwise re: the WRS. I know the government are considering scrapping it but A8 migrant workers do still need to register.

"The Worker Registration Scheme was introduced in 2004 when new countries joined the European Union. It allows us to monitor where citizens of those countries (except Malta and Cyprus) are coming into our labour market, the type of work they are doing, and the impact this has on our economy.

You will normally have to register under the Worker Registration Scheme if you wish to work for an employer in the United Kingdom for more than one month and are a citizen of:

• Czech Republic;
• Estonia;
• Hungary;
• Latvia;
• Lithuania;
• Poland;
• Slovakia; or
• Slovenia."

Whether au pairs are an employee or not, well, they're being paid for providing a service so they are either a worker, employed or self-employed: guidance here. If they are just summer au pairs they could be considered workers but it's a very grey area. I take the view that their working hours and conditions are dictated by their employer therefore, legally, they are employed. As a governess I am: an employee, more specifically a live in domestic employee, and even more specifically a governess. An au pair is an employee (with all the rights of an employee), a live in domestic employee (exempt from NMW) and an au pair.

I compeletely agree it's still a cultural exchange - that's the motivation behind it for the au pair and, I hope, the family and we shouldn't forget that so all this legalese needs to be read within that context (but most people know that it's the idea of an au pair and they don't know the legal side). It's just so much safer to put the legal framework around it as well and it's easier to move from hard to soft over time than it is to go from softly softly to suddenly throwing the book at the au pair. I think it also shows a measure of respect for the au pair if you treat them like an adult, impress on them that it's a responsible job and let them know about their rights and responsibilities as well. Having worked abroad a fair amount I've always felt on surer ground when employers have sat down and explained: these are you rights in law, this is what the contract says (and here is a translation for you if necessary), this is how much you're paid, this is what you have to do, this is how much holiday you get, these are your hourse, this is what we pay on your behalf, this is what you get if you're sick.... It's never stopped me bonding with the family or benefiting from the experience of living in another country.

I think au pairs should have been treated like this before, certainly ones from the EU/EEA, but now the visa category has changed it's a good time to put the things people should have done before into practice but whilst maintaining the spirit of the exchange.

Cultural exchange is what provides the motivation for the AP as she spends her vaction/year out working in another family; and the employer needs to understand this.

An employer is somebody who pays another for services, where they dictate precisely how and where these service are to be provided on a regular basis over a period of time.

The only reason there is no tax/NI payable is because pay levels don't reach the relevant threshholds, nothing to do with the employer/employee status.

As I say fP is a very correct if a bit hardline, if you have no contract and aren't giving appropriate holidays/sick pay etc - then you are breaking the law and are leaving yourself exposed as an employer.

I feel that there maybe some class angst here about having domestic staff, whereas if you feel you are hosting a cultural exchange - well thats OK.

[puts on asbestos suit and stands back]

thinking about it i guess it would be better for both aps and host families if aps were technically employees as rights and duties would be clearer to both sides. there would be more paperwork as i understand it is when a family becomes an employer, eventhough there wouldnt be tax/ni payable.
or perhaps if there was a special aupair program similar to what they have in the us.

frAKKINPannikin - i think you've missed my point. i have read the home office website lots of times over the past ten years and i am aware of the visa side of things .
and have to add that only aupairs from romania and bulgaria have to register under the wrs scheme.
i personally feel that beeing and aupair/hostfamily is still a cultural exchange thing eventhough there is no law saying this and there has never been one in the uk as far as i know (uk has not ratified the europian treaty about aupairs). until the latest changes (meaning the youth mobility scheme) there was lots of aupairs from eu countries (old and later also new) who didnt need the aupair visa(and i think there was many more of these aupairs without visa then the aupairs who needed aupair visas) and noone minded them being called aupairs and treated as aupairs in the spirit of what aupair association outlines. now suddenly when the visa category has vanished we should treat them differently?
so my point was - can you point me in the direction of some regulations that actually says who is classed as an employee and who is not because i personally think aupairs are not employees.

Better take a hard line and lay it down then hope that people who have APs are prepared to maintain the spirit of the cultural exchange than let employers think that nothing's changed.

There was a thread on here recently about an au pair who threatened legal action and the reason she'd have been able to do this (although she was a complete nutter by the sounds of it) is because there was no contract and her employer wasn't aware of the rights (and responsibilities) of an au pair as an employee. By all means continue to call them au pairs but personally I feel it's a bit of a misnomer and perpetuates the idea that it's okay to exploit a defenceless teenager, kick them out on the spot when you're fed up with them or they don't do things your way, not let them have any holiday, withold their pay if they're ill and say you're doing them a favour by letting them be part of your family. Better call a spade a spade and an employee an employee (a 'live in domestic helper' in this case according to the collective wisdom of MN!). I know the vast majority of au pair host families AREN'T remotely like what I just said before anyone flames me and there are bad au pairs out there as well but it's the sorry few 'host' families who make the hard line necessary. Once you've got the foundations then you can smudge the edges a bit but for goodness sake protect yourselves and get it all done properly! People with au pairs are employers, much as they'd like to think of themselves as just a host family, and it's the same as employing a nanny - just a less professional relationship. It's perfectly possible to do it legally and nicely though and DIOM seems to strike that balance extremely well.

Meandering slightly (sorry totally!) I'd like to see agencies know what the heck they're talking about too - most of them haven't got a clue.

[Happily joins in hijack]

FP is substantially correct if taking rather a hard line. Au pair is still perfectly acceptable as a job description but is no longer tied to a visa type.

The new visa regulations are more restrictive than the . Citizens of the EU AND THE EEA (mainly bits of Western Europe not in the EU e.g. Norway) AND Switzerland have an automatic right to work here, except for the restrictions already outlined.

The new visa classification "Youth Mobility Scheme" is only open to citizen of Canada, New Zealand, Australia and Japan so excludes a lot of countries that previously were traditional sources of au pairs and mothers help. More significantly is does not tie them to one employer, so if they feel they are not being treated fairly it is not a visa violation to go and find a new employer.

The point about paid sick leave and paid holidays are spot on and important. My current standard contract covers both. You can direct when holiday is taken, so my contract allow for 4 weeks paid holiday a year (pro-rated for shorted contracts) with 50% to be taken at a time of the APs choosing (hoping they will choose Chirstmas/New Year) and 50% directed by me (when the DCs are away with the outlaws).

And some typo corrections...

because
If they are legally working in the country, either because they are an EU citizen or they have a visa entitling them to work, then they have exactly the same rights as anyone else under UK law.
their residence

Really must not confuse preview and post!

catepilarr: 'Au pair' was a visa status which no longer exists. It's been replaced by the tiered mobility scheme, with the exception of EU nationals who weren't 'au pairs' anyway. See the UK Border Agency for confirmation of this.

In fact, you make my point perfectly for me - there is no such thing as any regulation for au pairs becuase they don't exist. What are they then? They are domestic employees, employed on exactly the same basis as any other person you expect to do a job whether that's in a shop, an office or a home. In effect they're mother's helps (or father's or parent(s)'s helps) and if they come from abroad then they're classed as migrant workers. If they are legally working in the country, either because they are an EU citizen or they have a visa entitling them to work then they have exactly the same rights as anyone else under UK law. These include, but are not limited to:
Paid holidays
Paid sick leave
A written statement of employment
Minimum wage if live out (the CAB have useful guidance on this)

Unless they are here on a student visa they no longer have the legal right they previously had where language classes took precedence over contracted working hours. Other changes are they're no longer limited to 25 hours work per week and they're residence in the UK is not related to their employment status.

The situation regarding the A8 countries is complex and Bulgaria/Romania even more so. Technically au pairs from A8 countries are supposed register under the May 2004 legislation if they plan to work for more than 1 month and have been resident and continually employed in the UK less than 12 months according to the UKBA. As far as I remember it's actually the responsibility of the employer to get a copy of this registration but the responsibility of the employee to register. Bulgarians and Romanians need permission to work before the enter the country and this is very rarely granted for chilcarers.

Please note, though, that my training on this is nearly a year out of date because I don't do advice work any more! Everything I did remember and have said here I've checked on the internet from reputable sources and quoted them for you to see.

Apologies for the hijack totally

guess as you need to leave 7.30 for school, you do need to get up at 6.30- need an hour really to get up,wash, dress and brekfast

thats early!!!!

If they are not up already, she gets them up. I like to see my kids in the morning. So they are up. Unless I'm travelling for work and they do not have school. Then they can all sleep in.

But, they leave for school at 7:30ish, so 6:30 is not really that early. And anyone who thinks it is should try getting up at 4:00 on Tuesday to catch a flight with me.

6.30?

are your children up then as well?

my friend starts work at 6.30 but as children dont wake till 7am she doesnt get out of bed till then

but yes totallyfloaty - if the start time is 7am then she should be up at that time

which i know contridicts what i said about my friend, but her mb doesnt see the point in her getting up till children are up

thanks have been searching and checking things out. Sorry to hijack

stigaloid - if you search this forum, there is surely a thread called something like what hours does your ap do or what is your ap's duties

well I would assume if she is meant to looking after the kids from 7am, she cant come downstairs in her PJs and then use the bathroom for half an hour at 8am as who would be lookign after the kids?

Can i ask what time she finishes? Am interested in hiring Ap and this thread is interesting to me in terms of what is expected.

out of interest who says that aps are classed as employees now?
as far as i have searched ther is nothing regulating aupairs now apart from british aupair association. aupairs from new eu countries do not have to register under wrs /everyone who comes to work to the uk from a new eu country- has to/.

Yes you need a written contract. See either ACAS for guidance on creating a written statement of employment (but they're reviewing their guides) or direct.gov.uk

APs are now classed as live in domestic employees so are exempt from min. wage etc. (and consequently tax and NI if under the threshold) but in every other respect they have the same employment rights as any employee including a written contract.