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

Interesting thought BoffinMum. Sick pay, holiday pay and dismissal rights are of course already covered by employment law, but some kind of additional regulation does seem attractive, and this was of course (part of) the recommendation of the Parliamentary Assembly of the Council of Europe linked to above (Recommendation 1663).

However there is a counter-agrument which was highlighted in Mr Gaburro's report to the Parliamentary Assembly which led to Recommendation 1663; the following is quoted verbatim from this report:

"The United States of America has an extremely well-regulated au pair sector, with detailed security checks, references and interviews before placements ? regulations the IAPA [the International Au Pair Association, a trade body comprising au pair agencies] would like to see emulated in Europe. However, even the US programme has been plagued with problems ? from au pairs crashing family cars to alleged child abuse (at least three children have died while in the care of au pairs in the USA since the start of the programme in 1986). In fact, in the USA, au pairs are expected to work up to 45 hours per week, and are thus at risk of being exploited as a ?cheap childcare option?: emulating the USA in this sector might thus not be the answer."

I have actually come to the view that now the cultural side of things has been rather undermined by the EU expansion and associated freedom of movement, we probably ought to move towards some sort of regulation along the lines of the US if someone wants to be considered an AP rather than purely a domestic employee, i.e. give it some special standing and offer support and protection for both families and au pairs. Perhaps some initial training for the APs might be a good idea (some of mine have been absolutely mental and really stormed through the family with their own agendas, upsetting us and the children in the process, for example). A bit of training for families might be useful as well, giving a reference point for how to conduct the relationship to best effect. And possibly regulate things like sick pay, holiday pay, grounds for instant dismissal and so on.

Tereeesa, in many of your posts you have confused the status of advisory bodies with those that have legal jurisdiction, and confused recommendations and proposals with law. I have no idea why this confusion has arisen, so I apologise that you found my suggestion that a particuar case contributed to it condescending.

I do feel that it is necessary to provide some clarifications around the points you make to ensure that this thread does not remain with inaccurate references.

First Wed 31-Mar-10 23:35:00 you quoted from a document which you stated was issued by the European Commission (which is the the law-making body for the European Community), but was in fact issued by the European Committee for Au Pair Standards, which is a trade body and has no official status in the UK or Europe.

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In the same post you referenced the "existing European Agreement on Au Pair Placement from 1968". This Agreement was only ratified by Denmark, Spain, France, Italy, Luxemburg and Norway (Luxembourg has since denounced it) and therefore has no legal status in the UK or elsewhere in Europe.

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Next Thu 01-Apr-10 00:56:57 you quote from a document which applies to Czech nationals working in the UK and says that working as an au pair "would not be considered employment for the purposes of the Worker Registration Scheme."

The WRS requires nationals of certain 'new' EEC states who wish to seek employment in the UK to register. This provision simply says that au pairs who are Czech nationals are not considered employees for the purposes of the scheme and therefore do not have to register. It does not limit au pairs rights in any way, nor does it suggest that they do not have the status of employees in any other context.

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In the same post you say "At least [au pairs] can go to an employment tribunal...". Employment Tribunals in the UK only have jurisdication in disputes between employers and employees over employment rights so I am not sure what your argument is here?

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In your post of Thu 01-Apr-10 12:51:01 you make the following points:

"The Coucil of Europe acknowledges that au pairs have a unique status though that is neither worker or student. They have attributes of both.

You and mranchovy have used specific parts and paraphrased this Turkish court case to build or support a theory that you constantly push that au pairs are employees and that au pair status doesn't exist any more."

Again you refer to the recommendation of the Council of Europe which has no status in law. You also appear to be confused by the reference to the Payir case. I referred to this case because you asked to see where it is written down that au pairs are employees. Of course it isn't written down in any statute of English (or Scottish, or as noted here, even European) law that au pairs are employees, any more than it is written down that teachers, nursery workers or nannies are. However in the ruling in Payir, it is written down that being an au pair does not affect your status or rights compared with any other worker.

This was not a Turkish court case, it was a case in the English courts, with the UK Government as one of the parties, which was brought before the European Court of Justice, which has jurisdiction in the UK. It is an important case because it is the only time that this court has ruled in a case where one of the parties (the UK government) advanced the argument that, although au pairs are employees they have a special status which means that it is possible to give them different rights to other workers. The ECJ decided that that argument was wrong. Unfortunately, in typical legal fashion, the ECJ took over 2,000 words to say this and so it requires paraphrasing in this forum but if you feel that this paraphrasing was selective or unfair I will link again to the summary of the case including the judgement ('Reply of the Court').

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In the same post you say that "The UK government recognise and liaises with the British Association of Au Pair Agencies and refers people to them if they need information about the au pair programme in this country". To support this assertion you refer to a document which actually refers people to the BAAPA for 'Information on au pair opportunities in the UK', which is hardly the same thing.

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I am sorry that I was confused by your post of Thu 01-Apr-10 12:51:01, I did not realise that you were no longer referring to au pairs.

I was wrong in my reading of the reference to the 'indignation' of the Council of Ministers in their reply to Recommendation 1663 of the Parliamentary Assembly as an 'emphatic rejection', however the Council did not adopt the recommendations regarding au pairs.

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In your last post you refer to au pairs 'registering as employees'. Perhaps this is the source of all the confusion? Under English (and Scottish) law, you do not register as an employee. Nor does having a written contract make you an employee. What makes you an employee is the fact of undertaking work for an employer in exchange for payment. Perhaps the following guidance from ACAS helps explain the situation:

"A contract of employment is an agreement between employer and employee and is the basis of the employment relationship. A contract is made when an offer of employment is accepted. A number of rights and duties, enforceable through the courts, arise as soon as this happens.

Most employment contracts do not need to be in writing to be legally valid, but writing down the terms of the contract will cut down on disagreements later on. The Employment Rights Act 1996 requires employers to provide most employees with a written statement of the main terms within two calendar months of starting work."

Of course their are a number of situations where undertaking work for someone in exchange for payment does not make you an employee (principally where you are an employee of somebody else, where you are self-employed, or where a specific exception exists for example a husband cannot employ his wife to perform domestic duties), and from my point of view this whole discussion is about whether such an exception exists for au pairs in the UK.

To summarise my view of this, there are a number of documents which say 'au pairs have a special status, neither employee nor student', but none of these documents have any status under UK law, and the European Court of Justice has ruled that you cannot use the 'special status' argument to deprive an au pair of the rights and protection enjoyed by workers generally.

To avoid going round in any more circles over definitions and look at practical consequences, Tereeesa can I ask what you think is the difference between the rights and obligations that exist in an au pair/host family relationship and in an employee/employer relationship generally?

Being an employee does not mean that tax forms have to be done. Employment law and Tax law are different. So would be fine for an au-pair to be an employee but not be paid enough for employer or employee NI or income tax to be necessary.

And treeesa feel free to just call me frakkin, or frak. That's the bit that stays the same!

At this stage I'll take an answer from anyone! I'm also sending it to several contacts in the legal field my father passed on including professors in university law departments and solicitors so they might be more inclined to comment.

We are only human, we're doing our best to help people avoid unfortunate situations where au pairs may have a case for breach of rights. Sometimes we miss things like the BR3 form - when the UKBA puts a notice on their website I tend to believe them - but when proved wrong we do amend what we say (although Bulgarians and Romanians don't need an au pair visa specifically to be an au pair, there are other legal routes). Overall given that an au pair is no longer legally given special status we now take the view they're an employee. Seeing as the status 'au pair' generally doesn't exist any more what have they become? The answer is something akin to a foreign mothers help or nanny - a live in domestic childcarer - and if mothers helps and nannies are definitely covered then au pairs are too. There is no line in the sand any more. In my letter I ask at what point in terms of hours, pay, length of service and duties an au pair stops being an au pair. I hope I will get an answer!

Why would parents who have an au-pair not want that au-pair to have employment rights?
Is it due to the dismissal process?

Yes, I feel they have worker status but don't have NMW protection due to be live-in.

Parents who use au-pairs are best advised in my view to presume that the au-pair is an employee and should get the usual employment rights - such as getting a written statement/contract within 2 months of starting the job.

Yes Treeesa, that's exactly what everyone has been saying all along - that it isn't written down explicity that in the UK au pairs are treated as workers but that is implicitly the case.

I am sorry if we have confused you by quoting from case law that supports this implication, but we were only trying to help.

Incidentally that same report discusses (p. 34) the fact that all of the Council of Europe stuff including the bit about 'distinctive status, neither students nor workers' was emphatically rejected by the Committee of Ministers in 2005 (as the 1968/9 report had been before) and so this has never had any legal status in Europe.

So are we all now agreed that in the UK au pairs enjoy the protection afforded to workers generally?

frakkin... some lists of names. Not sure how helpful they are though, as they tend to be MPs who will change following the General Election.

Her Majesty?s Government

Government websites tend to have a Contact Us facility. Alas it doesn't seem to be able to be used to contact an individual person... but will get through to the Ministerial Contact Unit (or whatever section of the Department is dealing with enquiries). It can take several weeks for them to reply.

Thats for the UK organisations, for the international ones substitute Working Time Directive (93/104/EC) and Proof of Employment Relationship Directive (91/533/EEC).

Can I add the Better Regulation Executive (part of the Department for Business Information and Skills) which is responsible for regulating au pair agencies?

Questions:

Do you consider that au pairs in the UK benefit from the provisions of the Working Time Regulations 1998 (to the extent that domestic staff are not exempted from specific Regulations by Regulation 19)?

Do you consider that au pairs in the UK benefit from the provisions of the Employment Act 2002, in particular the right to receive a Written Statement of Employment Particulars?

May be more, gotta run for a bit

Any ideas on how I can get names to write to people? I like the suggestions, am adding them to my list and have CATed you about the questions, DIOM.

And if you do write to government departments I think it is also worth pickign up the 1663 point that Treeesa makes and ask what they are doing about that.

What questions are you going to ask frakkin?

I would go with:

Employments status?

If not employee/worker then what legal protection/rights are they entitled to? Specifically around dismissal, holiday pay and sick pay (being the ones that come up one here most often)

Does the ECJ case prove anything around this?
and why (not)?

Write to two different people at each body and see if you can even get consistent answers from each, my bet would be that UKBA and HMRC would be the worst offenders on that one.

Why not add the Home Office (immigation) DCSF (childcare regulations) and DWP (employment) to your list and see if government can be consistent?

The other point to raise here is some people think that au pairs shouldn't get paid if they're not working but if it's a cultural exchanged and what they're getting isn't a salary but pocket money then surely they should get that regardless of whether they work or not? Money in return for doing work is called a wage, which is what employees get.

I am about to send letters to ECAPS, the IAPA, ACAS, the CAB, HMRC and the UKBA today asking for their points of view on the issue. I suspect they will all say different things relating to their main area of expertise but my list of questions is fairly exhaustive. Before I send them would anyone like to suggest any questions or issues I may not have addressed?

Finally the European Court is a body convened as part of the EU's legal framework. The UK is a member state of the EU and as such the European Court has jurdistiction on matters of European law such as the free movement of goods, capital and works etc. The Council of Europe and its treaties are non-binding. If you don't sign them you don't have to enforce them. In that respect it is very like the UN and therefore completely different to the EU.

Treeesa I do think you are putting words in to my mouth.

I have never quoted Univeral Au Pairs, in fact in the past I have complained that most of what they post was changed recently based on them reading various threads on here, up until that point it had been very misleading.

The ECJ is not a European Assembly, nor have I ignored a European Assembly. ECAPS is nto part of the European Commission, it is a lobbying body. I don't offer an opinion on whether it is a good or bad lobbying body merely point out that its pronouncements can not be taken as law as was implied by you linking to ECAPS by saying "definition of au pair provided by European Commission".

I thoroughly agree with everything you see about exploitation and everything in the 1663 link you provide; in fact that is my whole point without employee/worker (and the fifference is semantics) au pairs are wide open to exploitation.

For example this from the BAPAA website: "Q As an au pair, do I get paid holiday? If so, how many weeks
A You will get 2 weeks paid holiday per year." Why only two weeks? Why not the four weeks that every employee is entitled to? Were I being overly cynical (and usually I am not) I would suggest that if it was widely pushed that APs were entitled to 4 weeks (28 days if you include the bank holidays) hen it would be reduce their attractiveness over other forms of childcare reducing business for BAPAA's members. I regard not giving somebody their full holiday entitlement as a form of (albeit mild) exploitation.

I have not said smart au pairs are pushing their own agenda - I said that ECAPS was a lobbying oprganisation and evidenced this by pointing out that the UK was represented by an au pair agency rather than a politician or a civil servant.

I would not agree that I "constantly discredit au pair agencies in this country saying that they give poor advice" I have said that many give out incorrect advice and you can take two minutes to google half a dozen doing just that, yes you can google just as many (if not more) that get it right but if you are a new employer how are you supposed to know which is right?

I quote two reasons for not using an agency one is the cost and the second is the bad info they hand out, quite a few are not yet up to speed on Youth Mobility visas for example (neither is au pair world but I would never use that as a source of advice).

Despite this beciming a ding dong battle between the two of us I think we are agreed on most things:

• au pairs need protection from exploitation
• a proper contract is a good way of doing this
• the au pair agency industry needs better regulation

My main problem is that as soon as you say "Cultural Exchange" some people (and please don't think I mean you, from your posts on other threads I know I don't mean you) see this as an excuse for patronising behaviour along the lines of we are doing her a favour really by having her here (Jeremy Hardy parodies this attitude very well in some of his shows) and that is the road to expolitation.

However, my argument is that a lot of that protection is already there if people acknowledge that au pairs are employees.

There are also changes in Immigration law. No au-pair immigration category anymore, so have to enter under a different category - Youth Mobility Scheme, EEA national.

And that as UK is not a signatory to the original 1968 agreement and definition of cultural exchange derived from that document is not to UK employment status.

And that the fact that APs are not required to register under WRS does not impact the employment status under immigration law.