Au Pair Placements - is an au pair an employee or participating in a cultural exchange

Gosh go away for a week and some people write some very long posts.

Going back to the original question "is an au pair an employee or participating in a cultural exchange?".

I don't see these as mutually exclusive. We strive here for both, but if in doubt employee takes precedent.

LOL Mr Anchovy

'Twas a fetching French lassie who took a liking to my little bruv. Thinking about the quality of AP brothers I have encountered, I think I would probably decline the other part of the cultural exchange, if that's OK!

I think most agencies are truly, truly rubbish, and even the better ones are very limited in what they do to help APs see the light. I have only ever come across one agency in my life that made what I would call an effort sorting out a duff AP.

Basically the attitude seems to be that after the (miniscule) guarantee period, if the AP buggers off you're on your own, and all they do is hand wring and bleat about how sorry they are, and would you like to give them some more money for a new AP/Nanny or whatever.

It's not surprising people go to Au Pair World and so on, is it?

Missus, EColi I think that at least 90% of au pair employers want to do the right thing (although there will always be a small minority who will treat an au pair as a slave).

The problem is that nearly all the agencies tell nannies and their employers that they only get two weeks holiday, have no employment rights and the only thing they can do if they have any problems is call the agency.

How can we stop this?

Is that the AP and your brother or you and the AP's brother? Either way sounds like a good cultural exchange to me .

Thanks for the new input. Anyone think we should take on the agencies and their 'not an employee, one weeks holiday after 6 months, any problems call us and we will tell you to put up with it' rubbish?

Even more reason to have clear boundaries/expectations in writing then - and then goodwill gestures in either side are clearly favours rather than obligations.

Works both ways, the member of the family thing. For example,

"I have found a flight that is £10 cheaper on Ryanair to go home, could you drive 60 miles there and back to the airport at 4am so I can catch this cheaper flight, because I did not check there was any public transport at that time before booking".

"I have my entire family coming along with my boyfriend for a week - can they stay in your guest room? And eat your food? But not talk to you very much because they don't speak English."

"I have no money left and I have 60kg excess luggage to get back. Can you give me a load of extra money for doing absolutely nothing so I can afford to send my Primark collection back via courier?"

"I am sorry I shagged your brother, but you have to admit he was asking for it".

All of the above are common to the AP world but would be less tolerated in a normal job, methinks.

Having been an au pair when younger myself, "oh but you're a member of the family!" generally seemed to be code for "please do extra work for no extra money"

Yup Missus - That's what I said on the other thread. It's not that much effort to treat people properly no matter what the rules
and regulations say implicitly or explicitly.

I don't understand why anyone wouldn't want to treat their au pair as an employee/worker? Give them proper holiday, don't deduct wages unfairly, have a contract that sets out expectations clearly on both sides - is it really that much more effort for an employer?

But live-in workers/employees are exempt from some of those.

Just thought I would add something to the mix here.

In practical terms the difference between the statutory protection provided to a 'worker' and an employee is minimal. SO if we accept that Payir established au pairs as workers (which appears fairly clear in the judgement) then they are included as such in the vast majority of UK employment protection legislation - of the top of my head workers are included in the Working Time Regulations, National Minimum Wage Act and the Part-time Workers Regs 2000.

A definition of a worker can be found in ERA 1996 s.230 FYI.

I have found that the authority of Payir was recognised in an Employment Appeal Tribunal in October 2009. This had nothing to do with Turkish nationals or au pairs, it concerned a volunteer and the Disability Discrimination Act.

Here is a relevant extract from the judgement:

"That case related to whether a Turkish au pair in the United Kingdom was a worker, and [Stanley Burton J] concluded (at paragraph 23 of his judgment) that there was a genuine employment relationship between an au pair and the family for whom she works: her work could not be regarded as "purely marginal and ancillary".

This removes any doubt that the judgement in Payir will be recognised in a wide context in a UK Employment Tribunal.

Hmmm, given my last paragraph I had better change the introduction to:

"I will try to stick to the facts and let others judge between paraphrasing and misrepresentation."

I will let others judge between paraphrasing and misrepresentation and will stick to the facts.

You didn't refer to the 'European Commission for au pair standards', you referred to the European Commission. Regardless of whether or not this was an innocent mistake the effect was to represent a statement made by a trade body set up by au pair agencies as a statement made by the legislative body of the European Union.

I didn't say that ECAPS is not an official body, I said it doesn't have an official status in the UK or Europe. The official status of the European Commission is established by the Treaty on European Union (formerly known as the Maastricht Treaty) which the UK has signed. What do you suggest establishes the status of the ECAPS in the UK or Europe?

I am not sure you have worded your comments about the Council of Europe au pair agreement correctly, but you appear to be intending to claim that a treaty that has not been signed by the UK has equal status to the ruling of a court with jurisdiction in the UK. I am afraid that I cannot agree with that.

Your next point demonstrates nicely the difference between paraphrasing and misrepresentation.

Omitting words that change the sense of a phrase like this "au pairs are not considered employees for the purposes of the scheme" is misrepresentation.

Omitting a whole section of text that does not contradict your point is paraphrasing.

Are you implying that I quoted the section of text you quoted with the words you emboldened missing? I did no such thing, I ommitted this text entirely precisely because of the limiting clause which meant that it could not be generalised. In fact the only time this part of the ruling has been quoted on Mumsnet was by Frakkin in December when the emboldened words were included!

Your logic on the rights a Turkish au pair in the UK may be able to claim as a result of the Payir case is flawed. Once again, the ruling in Payir established that someone legally engaged as an au pair in the UK has the same rights as they would if legally engaged in any other work, what it did not say was that a Turkish person working in the UK under Article 6(1) of Decision No 1/80 is entitled to do any job they want.

Changing 'information about au pair opportunities' to 'information about the au pair programme' is not paraphrasing - you have made the clause one word longer and changed its meaning to one which better supports your case. This is misrepresentation.

Of course the other disadvantage of the US system is that it costs au pair employers about £5,000 on top of what they pay the au pair. This is a fee that they pay to one of twelve accredited agencies and I suggest that this is probably the reason why agencies in the UK, Europe and elsewhere would like to see a similar system introduced.

Well put, Leila.

PS I think some very occasional child abuse incidents and car accidents are going to be unavoidable. You get this amongst some trained nannies and nursery workers (and as we all know, some children's parents as well). If you think about the total number of days' childcare being provided, and consider the number of negative incidents as a percentage of this, it is probably very small indeed.

I think it is very unclear as to the status of an au pair. Maybe when there were au pair visas available the guidance was clearer. Now what?

I think most parents would want their au pair to have rights, obviously. But an au pair set up as traditionally defined doesn't really gel with that of an employee. They are meant to be part of the family. They often have poor English. They work limited hours. They get a lot of in-kind benefits - housing, bills, food.

Personally, I'd be happy to employ a part-time nanny who'd be happy to work typical au pair hours eg. do the school drop off and pick up. But I can tell you now, that most people want to work full days, not have a few hours free in the middle (which au pairs are happy to use for exploring or learning English.)

Seems to me au pairs fill a gap between the typical school day and a typical working parent's day. What a shame the government abolished the au pair visa sytem before waiting until all schools offered extended hours.

I have problems with the US model, and indeed I hired an AP once who had spent a year on the AP in America scheme, and she was one of our worst offenders. No, I think a home-grown, EU-centred scheme would offer something more useful in terms of fitting in with modern families and young people.

I think I can envisage something like a two-week residential course, paid for by the AP (to weed out the non-serious and ensure a decent length of stay in the UK), introducing them to British life and culture, which would cover things like:

1. How to share a house with working people who aren't your parents or boyfriend.
2. Very basic cookery and food hygiene - school packed lunches, a simple pasta dish or two, a sponge cake for birthdays.
3. Child safety and hygiene (I deliberately did not say child protection there, by the way) - crossing the road with kids, bike helmet use, one or two simple discipline tricks.
4. Child car seat installation skills.
5. British habits and customs, such as typical working hours, meal habits, social niceties and faux pas.
6. Introduction to housekeeping - simple routines for cleaning children's rooms, basic laundry and ironing of children's clothes and school uniforms, etc.

Then APs could be in a better bargaining position workwise than unskilled domestic workers, and families would probably be prepared to pay a premium and/or offer them superior working conditions.

Well, it's an idea, anyway.

Oh MrAnchovy... think I may have spotted the same thing as you... was it this?

"Theresa is a qualified registered general nurse and mother of three children. Nursing has meant early, late and night shifts, and Theresa has managed to juggle work and home life with the help of all of our au pairs. She can be found in the office a couple of days every week, and is always available to help with family visits.If we have a request for companion positions, it is usually Theresa who assesses personal care requirements."

Treeesa, could you confirm whether you are employed by or otherwise associated with (other than as a client) any au pair agency?