It's not working out with the AP

Clara - I was wondering how this one would work out. Good news for you that she has gone and now you have to put the whole sorry episode behind you. For weeks after our au pair left, the outright lies she told the agency really got to me. Then I realised that it didnt matter what she said/ thought.

I guess at the end of the day; they are still young and have lots to learn. I think you were very kind to let her stay. We simply gave ours the airfare home.

Treesa - I agree with absolutely everything in your last post (well except how good agencies are) and acknowledge that the bit about Romanians and Bulgarians was new to methe bit I am disagreeing with was your assertion that au pairs are not employees, as "workers" they have almost all the rights of an employee, contract, paid leave, notice period etc. Just about the only one they don't have is the right to paid maternity leave!

Yes was up playing Santa, kids had a great time thanks - hope all your family enjoyed Christmas as well.

you can do what you like but she is not going to have anything good to say about you - we have had a similar situation with a live-in housekeeper (stealing around £500 over a period of several months) and still paid her in lieu on the understanding that she would vacate immediately.

that way, you pay to get rid of her with the min awkwardness. she must have friends to stay with from among her community (they v often have you know). other alternative would be to buy her a cheap flight home!!!

since our bad experience, we never agree to people moving in from the start even if it is a bit of a hassle for all concerned. we structure it as a perk for once the probationary period is up. this ensures that less people are interested but eliminates many of the sour-faced freeloaders who are just in it for the granny annexe in a nice part of London

Mmm, au pair is strictly speaking not an employee. Also, in spite of what some people think the term 'au pair' certainly does still exist and is still recognised by the Home Office, however, there are no restrictions anymore on EU au pairs (except those of Romania and Bulgaria). All au pairs we place have received a 'Letter of Invitation' of the host family which clearly outlines their duties and rights. In your case, I think that you should pay the au pair the two weeks notice period. However, before getting rid of her and having your child needing to get used to somebody else again, is there no way to resolve the situation? It is a pity you didn't go through an agency because mediation is one of the roles an agency can perform. Why not have a chat, I would first try to find out if she feels happy, asks how she thinks things are going, and then come with clear examples of things she has done well and not well and a plan to how she can improve. You could set this out in a kind of 'Letter of Invitation'. I don't think that this is just about the au pair and you but also your four year old ... In most cases there is a solution IMO.

treesa, i have learned that trying to get a message across on this board is sometimes a neverending story. so i just gave up on certain subjects.
hope the process of getting an ap is going well.

Looks like you were up playing Santa judging by the time on your email DadinsteadofMum..!

I hope you had a nice Christmas with your kids.

I'm not sure why you are saying I am wrong (or what you are saying I am wrong about).

I have been involved in only one or two discussions with you or other people on these discussion boards about au pairs having age restrictions and their status.

In the other discussion about the 31 year old Romanian woman you had said there were no longer age restrictions or that they were irrelavant now. I merely said that Romanian's could not come here under the au pair rukes if they were 28 or over. You told me I was wrong or my agency was wrong - but I showed you the appropriate guidance from the Border and Immigration agency..

I have never said the au pair visa still exists. I understand the au pair visa scheme was all rolled up into the Youth Mobility scheme last year (and again there are age restrictions on that scheme too - people wanting to come and work as au pairs from these nations have to be between 18 & 30). So that makes 6 countries where there is an age restriction just to come into the country in order to start working as an au pair.

I said that legal status was different to immigration status and I stand by that. People who live and work 'au pair' as a member of the family can be classified as having au pair status. If you are not living as a family member or work excessive hours then yes you are a live-in domestic employee and not an au pair.

By contrast some information I have read on these discussions have been incorrect - people saying that au pairs don't exist anymore.. Maybe people's own interpretation or ignorance of the rules.

Who do I believe though - I believe agencies because that is their business - they are dealing with these things week in - week out. Using an analogy it's similar to someone going on a one day first aid course and then advising about nursing practices for someone requiring complex medical care.

All the information provided from my agency has been correct and all backed up by other information from government web sites. I called another agency I use a couple of weeks ago regarding the girl from Romania who was just about to turn 28 and given similar information.

When I can get my computer to open this pdf document my agency sent me I will try to post the relevant parts.

Au pair visa does not exist there is a minor exemption for Romanians/Bulgarians so that they don't have to comply with full worker registration hoops that is all.

Au pairs have proven (with court precedent established) to be workers with full employee rights the only difference between worker and e,ployees is that workers don't get paid maternity leave!

Sorry Treesa you are wrong and we keep proving it to you so not sure why you don't believe us, ClaraZ this is why I don't use an agency I don't believe they can justify the fees and they give out too much incorrect information.

Legal status and immigration status are two different things though. People have been working as au pairs well before any government introduced a category of visa to cater for them.. There are still immigration rules on au pairs from specific countries mentioned above.

My agency sent me a document that has a lot of information in it but when I try to open it seems to freeze my computer even though it opened fine last week..

I am aware of the literal translation of "au pair" but I thought the legal status / visa was a thing of the past. Are you saying that young people still enter the UK on an "au pair" status/visa?

It means au pair..

Au pair means on par or on equal terms.. meaning that they are living in the same way as if they are a member of your own family.

About your rhetorical question then as your own children get older then what they participate in will change.. A younger child would do very little chores but would do a lot of visiting with the family to days out, grandparents etc. An older child of say 16 or 17 would hopefully be doing a lot more round a house but probably be going out less frequently and more begrudgingly on family days out!! When they are older still I'm sure most people aged 18 - 25 may not be interested to get up on a Saturday morning to go to the gym - though some might..

What is all this talk of the "au pair status". I thought the au pair visa was dead and gone.

And can someone define what the government means by "the household?s work and leisure activities". Does this mean I should get my nanny out of bed on Saturday morning to come to the gym with us so she'll be exempt from minimum wage (this is obviously a rhetorical question because I'm pretty sure she'd resign if I did this).

From directgov:
"If you are not a member of your employer?s family but you live in their home and share in the household?s work and leisure activities, for example if you are an au pair, you are not entitled to the NMW."

Is there any legal basis for "au pair status" as a special category?

nannynick - yes anyone from any EU country can work extended hours, but they do run the risk of not being recognised as having au pair status.

They do but they can only get one issued for au pair status if the are between 17 and 27 years old.

But doesn't it depend on where the au-pair is from... thought we established that earlier. Those from Bulgaria and Romania need to complete the BR3 form thingy, thus are still au-pairs (restricted working), whereas those from other countries in the EEA are not restricted in working hours.

All so confusing.

That's interesting - I thought Romanians and Bulgarians just needed an Accession Worker Card.

No not those (although there are age restriction rules for the Youth Mobilit scheme) - there are still age restriction rules in place for Bulgarian and Romanian au pairs..

What are the au pair age restriction rules? Do you mean for someone requiring a youth mobility visa?

Well we will have to disagree..! :-)

I spoke about this extensively with my agency who are very helpful. I also asked them about the court ruling as I had been debating this on another thread - we are getting someone who was turning 28 years old who if we invited her too late wouldn't qualify under the (still existing) au pair age restriction rules..

The court ruling by the way was for the purposes of assessing if some Turkish workers had accrued rights to stay working in the UK based on an agreement made between UK and Turkey many years ago.. The ruling did not say an au pair is not an employee - but the au pair in question was classified as a worker for the purposes of assessing whether the person had accrued certain priviledges based on things specified in this earlier agreement.

You might find this quite useful Treesa www.universalaupairs.com/family/about_au_pairs__nannies.html

"We contacted ACAS in March 2008 and asked whether an au pair is considered an employee for employment law purposes, or whether an au pair falls in to some 'cultural exchange' status. The answer was definitive - an au pair is an employee and is entitled to rights such as a written statement and holidays."

Yes, I agree au pairs/nannies etc living as part of the family are exempt from NMW - still employees though.

Live-in employees are exempt from the minimum wage if they join in with family activities and share household chores i.e. living as if they were a member of teh family.

If someone is living as a 'domestic' and is being asked to work say 40 hours per week for instance, then the family run the risk that the person could be categorised just as any other employee that is provided accommodation as a benefit of doing their job (i.e. hotel chamber maid with accommodation).. They may then be subject to the NMW.

An au pair can have sole charge of a 4 year old MollieO and is quite common. The differentiating factor about a true au pair is that they should work a maximum of 5 - 6 hours each day.

Treeesa - live-in employees are exempt from the minimum wage. You can't decide someone isn't an employee if they are "part of the family" unless they are actually related to you!