Getting a new au-pair - do you really need a contract?

www.gov.uk/au-pairs-employment-law/au-pairs

Government website states that au pairs are not generally employees, and so not entitled to, for example, the national minimum wage or paid holidays -

www.gov.uk/au-pairs-employment-law/nannies

upon Au pairs*

What about the useless mumsnetters who decide to comment stupidities on a post dating from 2010 ( !!!) to wish death open Au Pairs, should they be shot too ?

Couple of points:

@Mingg I am no expert on European law and I am not sure what published source is authoritative: my information about the signatories to ETS No. 68 is taken from another Council of Europe document, the report on Domestic slavery: servitude, au pairs and mail-order brides of 2004. I reason that if the Council does not know who has signed up to its own treaties, they can't have much effect anyway!

@Mingg your point about 'marginal and ancilliary' is a good one, although it is clear that in the vast majority of au pair placements the work does not fall into this category.

It is my understanding that the national minimum wage does not apply to au pairs, not because of the accommodation offset but because of an exemption for au pairs and nannies who are 'treated as a member of the family', however I have just looked at the NMWA and the relevent amending SIs and I cannot see this provision anywhere, however it is quoted on all the government sites (BERR, DirectGov, Business Link etc.) - I would be interested to know the source of this law.

Most English employment statutes now apply to 'workers' which are defined in the statutes more widely than employees, so the argument about employment status is somewhat academic anyway - whether au pairs are employees or not, they still get the same rights as employees.

Absolutely agree - although I always steer clear of teenagers anyway..!

No doubt it would be more of an issue for the au pair if they expected to be part of the family and then weren't able to participate at all. However it can be an issued for the family too - if the AP does not want to spend her free time with you you can hardly force her. Otherwise you are going to have a sulky teenager on your hands and possibly a ruined day for everyone.

Mingg - maybe so but in both cases isn't this irrelevant if both sides have agreed to the person working under an au pair agreement.

If the au pair is choosing not to want to be involved with the family - and this is an issue for the family, presumably the family would seek to address this - unless this arrangement suits them.

It is more of an issue I imagine if the family is choosing to ignore the au pair and not treat them as a family member. The au pair would be less likely to air their feelings and express any desire to change things for fear of losing their position.

Have wondered about that too Treeesa

Butterbur - Maybe the answer that InlandRevenue gaveyou was because they look after taxes, and IR would treat any earnings an au pair receives in exactly the same way as any other person. Usually their pocket money falls under their radar screen - but especially if they are working in another job they are then quite likely to go over the threshold and so the tax man suddenly becomes interested as those earnings are then liable for taxation.

Isn't this the same for our own children if they receive pocket money and/or payments from other jobs that takes them over the same thresholds though.

"Increasingly au pairs don't spend time with the family when not working..." Frakkit I agree.
Treesa you are assuming that au pairs are not spending time with the family because the family prefers them not to. All the ones I know are not spending time with their families because they they do not want to, they rather go out with their friends.

not really wanting to get involved in this debate all over again - but..!

it is wrong to say that increasingly au pairs don't spend time with the family when not working. Au Pair means living as part of the family just as it has always meant.

If increasingly they are not being treated as a member of the family then the families doing that are acting incorrectly. They are trying to employ someone in an au pair capacity in order to pay lower wages and avoid giving employment benefits, but avoiding the extra benefits, personal time and additional expenses that are normally invested when treating the person as a family member.

My belief is that if families do not want to treat the person living in with them in traditional au pair style, then they have the option of treating them as a regular employee (as recommended by the UK government see below). In this case I think they should be paid the minimum wage with accommodation offset.

This is the advice from the government about au pairs registering 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.

Do au pairs do leisure activities now though? Could this be the defining point?!

[suspects there isn't one because nothing is that simple]

Increasingly au pairs don't spend time with the family when not working...

Also are nannies with self contained accom but no door deemed to not meet the above criteria?

Domestic Workers is a a visa category, so when that term is used they may mean those with a Domestic Workers visa - rather than someone who works in a domestic home.

I do wonder if it's the "share in the family's tasks and activities" plus "share in the household's work and leisure activities" bits are important. As a Domestic Worker would not be doing that, where as an Au-Pair would. A live-in nanny may or may not be included in things like Leisure Activities, so they may fall under NMW if they don't socialise with the family outside of working hours. Hmm, all looks a bit tricky and variable depending which site you look on for information.

Butterbur - did they actually say that NMW applies to au pairs? I am asking because DirectGov says the following:

If you are a member of your employer?s family, live in their home and help run a family business or help with household chores, you are not entitled to the NMW if you share in the family?s tasks and activities.
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.

and HMRC's site links to DirectGov yet does not say domestic workers would be excluded?

Oh that went wrong... try again...

Butterbur - did HMRC say that NMW WOULD apply but that the accommodation offset could be used?

Butterbur - did HMRC say that NMW would not apply but that the accommodation offset could be used?

Mingg... the link above includes the following
"However, accommodation is the only benefit in kind whose value can be counted towards NMW pay." So it looks like Food would not count.

Interesting, as that would therefore mean that the same would apply to live-in nannies.

Did you discuss the "benefits in kind" (food, accommodation etc) element of their pay with IR?

The Inland Revenue consider au pairs to be employees - I have discussed this issue with them.

This means that the minimum wage legislation also applies, and that you also have to register as an employer, even if your employee's annual earnings are below the limits for PAYE and NIC.

I've just noticed a typo though...maybe they're not replying becoz I can't speak English proper like.

C/P from my lengthy letter:

The questions I would like to see answered are:

Who can legally be an au pair? What is the justification for this?

What is the employment status of an au pair in the UK: employee, worker or something else? What is the justification for this?

If the au pair is not regarded as a worker or employee what are their rights receiving benefits from a host family in return for work? Are they entitled to a contract, holidays, notice of dismissal and a disciplinary procedure etc.? Is there legal recourse for them against families who treat them unfairly?

Is this status valid regardless of whether or not the au pair is taking English classes?
Is this status valid if the usually home language of the family they live with is not English?

Is this status valid regardless of the amount of money being paid to the au pair?

Does an au pair have a right to a written agreement with the family?

Does the precedent created by the Court of Justice of the European Committees in the ruling on ?Payir et al? designating an au pair as a worker have any bearing on this? I would be particularly interested in your interpretation of the tests carried out to determine that the au pair in this case was a worker and your view on the following quote regarding Ms Payir?s activities for 15-25 hours per week:
?that employment was a genuine and effective economic activity, and
that employment was in accordance with national laws relating to employment and immigration;?

Recognising that EU citizens have the right to work and live in different countries and that a UK national doing the job be counted as employed with full employment rights, is it discriminatory to deny au pairs who are EU citizens these rights?

Do those entering the country on a tier 4 visa to work have the same rights as any other employee in the UK? Are they able to take up placements as an au pair? If this is the case and au pairs are not typically accorded employment rights are their rights waived or are they accorded additional rights? Given that English is an official language of 3 of the countries named in the scheme are nationals of those countries still considered to be participating in a linguistic and cultural exchange?

Considering that the UK is not a signatory to the 1969 Council of Europe do the provisions detailed therein have any impact on determining the status of a person working as an au pair in the UK?

The agreement, to which the UK is not a signatory, specifies help with day-to-day tasks around the home. If one parent is not present and the au pair is left in sole charge of children does this still count as a day to day task?

Are there any specific advantages to possessing or not possessing employment status as an au pair?

At what point does a young person cease to be an au pair and instead become some other category of live-in domestic help?

What are the implications for the payment of tax and National Insurance on behalf of the au pair if an au pair is not considered an employee but is paid above the earnings threshold?

The 'no such thing as an au pair' any more is more than there's not such thing as JUST as au pair any more, although I phrased it badly. They are workers. Live in domestic ones. Even if they only work 5 hours a week for £20 AS LONG AS the family would be paying someone to do those 5 hours. Even the ones who come under a BR3 visa.

Au pairs have historically been seen through these lovely rose tinted glasses whereby we'll all welcome lovely foreign students who want to improve their English and we give them a bedroom and a bit of pocket money and they'll generally muck in. In the majority of cases that just doesn't exist any more. Au pairs now are paid to do specific jobs which often the parents cannot do themselves, therefore they are being paid for a service which means they get a wage which means they're workers.

I'm waiting for a response from no fewer than 12 organisations I figured the more the merrier

Under BR3 visa category there is still provision for Au-Pair, though it ONLY applies to nationals of Bulgaria and Romania.
See section 5 of form BR3

There are conditions such as:
~ help in the home in which you are being placed for up to five hours a day;
~ get at least two days off a week;
~ get an allowance and your own room;
~ are being placed with an English speaking family.