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Original poster

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

55 replies

Treeesa · 31/03/2010 23:35

Thread continued from Time to go from nanny to au pair that we seem to have hijacked.

nannynick We've had au pairs from the Czech Republic before and when we called the border & immigration department to register them for the worker registration scheme (necessary for employees from the 2004 new A8 countries) we were told we didn't need to bother as au pair work/placements are not considered employment.

mranchovy If you read the bottom of this page definition of au pair by European Commission then it is quite clear "The committee wants to stress that an au pair is not an employee and therefore not governed by employment legislation."

Just above this it also stresses "Definitions defined by ECAPS are based on the existing European Agreement on Au Pair Placement from 1968 (Ets 068), however updated and detailed to modern standards." So has incorporated the changes made to include male au pairs and other changes that have been made.

Your pointing out of the word 'employment' in document BR3 is another example of 2+2=5 to pick out words to extrapolate an unfounded point. The word employment is often used as a general term. It and 'employed' can be used in different contexts - in some cases inanimate objects can be employed to complete a task as obviously it means 'put to use'.

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DadInsteadofMum · 01/04/2010 13:00

But you admit then that a pronouncement by ECAPS is not the definition of the European commission?

Original poster
Treeesa · 01/04/2010 12:51

DadInsteadofMum You accuse me of extrapolating when all I did was directly quote from a British Government web site. The British Embassy web site says not to be considered employment I've not extrapolated I just quoted...

I am aware that au pairs have been defined as workers by the European definition. 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.

You say "as we know au pair agencies give out bad advice" - but you have previously admitted that you've never used an au pair agency because you don't feel they justify their charges.

The au pair programme transcends national boundaries. It is unfair to say that the owner of Smart Au Pairs is pushing an agenda. She has been appointed to that body by the UK association of au pair agencies. 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 - see advice from UK Border agency to contact BAPAA

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DadInsteadofMum · 01/04/2010 11:18

Sorry hadn't read all of the previous thread when posted the first response.

So to expand further: the reason the Turkish case applies is that in order to be entitled to the rights they were claiming they had to pass threee tests. One of which was to prove that they were "workers" part of the governments defence was that as au pairs they were not workers, it was found by the court that they had passed all three tests, therefore au pairs were workers. 2+2=4.

DadInsteadofMum · 01/04/2010 11:11

ECAPS is not the European Commission. It appears to be a lobbying body made up of national trade associations, the UK representative is not a politician or a civil servant but the owner of smart au pairs. So there is an agenda they are pushing, and as we know agencies have been know to give out the wrong advice.

Futher the Czech thing states "not be considered employment for the purposes of the Worker Registration Scheme." i.e. for the WRS only, so you can't extrapolate that into employment law.

Finally this has been tested in the European Court of Justice (somebody else will be along to cite the case in a minute). The government (in the shape of the Home Office) used all the arguments you are using above. They lost. The court defined an au pair as a "worker" slightly different to an employee but with most of the same basic rights.

As far as I am concerned an au pair is an employee.

Original poster
Treeesa · 01/04/2010 00:56

This UK government website states that living with a family as an au pair is not considered an employment.

British Embassy advice for au pairs from the Czech Republic advising if they need to register under the Worker Registration Scheme.

AU-PAIRS

  • What about au pairs?

Those who come to the UK to take an au pair position as a means to learn the English language and to enjoy a cultural experience are not required to register under the scheme.
This type of arrangement where an au pair lives as a member of the host family, helping around the home in return for an allowance would not be considered employment for the purposes of the Worker Registration Scheme.

  • What will happen if au pairs are already in the UK?

Those au pairs already in the UK who wish to continue current placements without changing their working arrangements do not need to register, providing they do not take up additional employment. However, should they choose to alter their au pair arrangement and enter into a more formal employment arrangement with the host family, e.g. by increasing their hours, duties or pay, then they will need to register under the scheme.

This is what I said on the other thread. Some families choose to extend the 'au pairs' arrangements to beyond what an au pair should be doing and so enter into a formal employment contract as the person can't really be seen to be working as an au pair. It is beyond that categorised as an au pair placement by all au pair bodies, the council of Europe and our own government.

I don't think there is anything wrong in having a good worded agreement between the family and au pair. It is always better to lay down the responsibilities and benefits that there are. I also think that au pairs who are recruited straight from gumtree or au pair world are better off having an employment contract because they don't have an agency to support them if the family are asking them to do work which hasn't been agreed to for instance. At least they can go to an employment tribunal to fight unfair dismissal in the event they are ill too often, talk too much, too dull or whatever else us families throw at them..!

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