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

MrA - my source is a European Treaty book which shows UK as a signatory. However it would not be the first time the signature pages have been mixed so I take your word for it.

When I said earlier that au pair/worker status depends on the working hours and the amount paid I meant that if you are working for 5 hous a week and get paid £20 yet spend 20 hours a week attending language courses, you'd be hard pushed to find a court who would rule that that the activity undertaken is not marginal and ancillary and vice versa if you work 40 hours and get paid £300/week (figures not realistic but you get my point). The same is also mentioned in the Payir opinion:

"An au pair who, like the claimant Payir, according to the national court, looks after the host family?s children and does housework for 25 to 30 hours a week will as a rule have the status of a worker.
With a weekly working time of 25 to 30 hours and activities such as child care and housework it cannot be said, with respect either to the duration of the activity or to its content, that there is only a purely marginal and ancillary activity. On the contrary, it is an effective and genuine activity for the purposes of the concept of worker.
Nor does the fact that an au pair does not pursue a full-time activity prevent her from having the status of worker. In the context of Article 39 EC the Court has already ruled that a person who only works part-time is to be regarded as a worker. (6) That must also apply in the context of Article 6(1) of Decision No 1/80. The decisive point must, rather, be whether an effective and genuine activity is pursued that is not purely marginal and ancillary.
It remains to point out, in conclusion, that an au pair relationship may take different forms. Whether an au pair thus satisfies the criteria of the concept of worker depends on the specific format of the individual case."

Frakkit - my comment about au pair placements falling under Youth Mobility Scheme was not intended as a comment about their employment status. It was a response to "There is no such thing as an 'au pair' any more" which is not true. The au pair concept has not been abolished. I'd be very interested to see hear how the authorities will treat this so I hope you start a new thread once you receive a response to your letter.

The YMS has no bearing on employment status. People under that scheme are free to take up such positions, or indeed almost any other job, but it doesn't replace the au pair visa, which was limitied to djfferent countries anyway. As mra has pointed out the UK is not bound by any of the conventions often quoted about au pairs and their special status, which no longer exists anywhere in UK law, so while the concept or the job hasn't been abolished - that it's a young foreign person wanting to experience life in the country doing childcare/housework in return for board, lodging and a small remuneration - they are for all legal intents and purposes live in (so exempt from NMW) domestic employees.

Check your sources Mingg.

The UK is not a signatory to ETS No. 68, only Denmark, Spain, France, Italy, Luxemburg and Norway are (and Luxembourg has since denounced it).

You are correct that Payir did not abolish the concept of au pair. What the judgement in that case did say was that any 'special status' that au pairs have does not reduce their rights as workers. Among other things, all workers have the right to receive a written statement of employment particulars containing the information regarding hours, holiday, disiplinary/greivance procedures etc. as mentioned elsewhere in this thread.

In the UK, au pairs are employees.

AP placements fall under Youth Mobility Scheme.

UK is a signatory to ETS No 68 - EU Treaties are binding.

Again, ECJ's decision relating to a Turkish au pair and two students was given in relation to whether or not they were able to rely on Article 6(1) of Decision No 1/80 for the purposes of obtaining renewed permission to work and a corollary right of residence - it did not abolish the concept of au pair. As I stated before the judgement gives a clear definition of what an AP is and is in line with ETS No 68.

Of course it is always better to have a contract.

Koumak - you are right, 6 months was ok without a VISA then it was off to the Alien Registration Office

Oops didn't mean to post twice! Stupid phone!

The point is in that judgement the au pair was counted as an integral part if the employment force and given her rights. The definition is no longer valid as it was under the old immigration status, apparently. There is now no definition of an au pair as the conventions are non-binding.

We have this discussion a LOT on here, and the safest thing to do is to treat them as an employee in the absence of any other definition. I'm still waiting for responses to my letter which asked for one

The point is in that judgement the au pair was counted as an integral part if the employment force and given her rights. The definition is no longer valid as it was under the old immigration status, apparently. There is now no definition of an au pair as the conventions are non-binding.

We have this discussion a LOT on here, and the safest thing to do is to treat them as an employee in the absence of any other definition. I'm still waiting for responses to my letter which asked for one

If it was me, I'd err on the side of caution and have a proper contract. I can't see that it would cost you anything, and it protects you and the au pair if anything goes wrong.

There is a also European Agreement on au pair Placement ETS No 68 (I think?)

Ruled in favour of a Turkish au pair with regard to her right being able to rely on Article 6(1) of Decision No 1/80 for the purposes of obtaining renewed permission to work and a corollary right of residence. Same EC decision also gives a definition of an au pair.

It's definitely nothing to do with money earned or hours worked. It's everything to do with the fact she gets paid. Judgements from the ECJ (I think, on phone, can't link) have ruled in the favour of a Turkish au pair being considered a worker and entitled to various employment rights.

A MNer had her au pair threaten to take her to court over several issues including the lack of a contract. Thankfully things were sorted out without it going that far but please don't assume that a contract is useless! It might only kick in in worst case situations but then it's worth more than it's weight in gold.

There is no such thing as an 'au pair' any more. They are exactly the same as any other live-in domestic employee like a housekeeper or a nanny. The term au pair referred to a now defunct immigration status, where restrictions were placed on hours/salary etc. Visas depended on your country of origin.

If she walks out on you there's not a lot you can do in practice but that's not the point. You could in theory take her to court for breach of contract. IMO a contract protects the employer more than the au pair in the most severe situations.

Can you clarify about the amount earned/hours worked? I wasn't aware employment status was based on this.

No European au pairs didn't need a VISA because they did not come here to work they came on cultural exchange. If they were planning on staying longer than 12 months they needed to register.

Whether an AP is an AP or an employee depends on the hours worked and the amount she gets paid. Just because she gets paid does not automatically make her an employee.

If they are an au pair in the strict sense of the word they do not need a contract. However it is better for both sides to have one.

Why wouldn't you want to give them a contract? How would this be to your benefit or theirs?

There's this from one au pair agency that seems to come down heavily on the side that an au pair is an employee:

"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."

here

"Also European au pairs never needed a VISA "

Really? I thought you used to need a visa to work/live in Europe.

Having a contract that you stick to though will stop your au pair chasing you for holiday or notice pay later though - that's happened to posters here.

I'm sure there have been legal cases recently that have found au pairs to be workers rather than a cultural exchange.

Also European au pairs never needed a VISA

No but it is still better to have one for both of you. Hopefully someone refusing to have one will appear non reliable and you wouldn't employ them.

Contract is not going to stop anyone from walking out if that is what they are going to is it now?

Websites do seem to contradict each other on the issue of whether au pairs are employees, but it mostly seems to be au pair websites/orgs/agencies saying "no, don't worry it's a cultural exchange". I think that may have been true when there was an au pair visa category, but nowadays if an EU citizen is working in an EU country in exchange for money then they are an employee.

Of course you need a contract. It is to protect both of you. Otherwise she could walk out with 1 minutes notice or you could sack her with the same.

This comes up periodically these days - their status is unclear as far as I can see it. It is safer by far to have a contract and to offer her the normal employment terms, ie holidays, agree grounds for dismissal etc. This is really important if you are planning for her to stay longer than a year as that is when more employment rights kick in (and again after two years). What we have done in practice is lengthen the invitation letter that the agency gets us to write to make sure we include the points that missus and Frakkin mention. We personally don't use the formal nanny job one as it contains a lot of verbiage I would worry the ap wouldn't understand and would terrify them. But we include the same general points. Not flawless - possibly - but also probably okay enough ish legally.

Whatever their status - family or employee - if you are paying them X amt and they get a second job that puts them over the taxable limit you will be obliged to register as an employer so please definitely include the point FRAKKIN mentions about being their primary employer if you are prepared for her to have another job.

If you haven't already offered someone a position, I would be tempted to stipulate no other formal contractual jobs for other reasons but maybe that's too late. Then the person could just say yes that works for me or no it doesn't.