People advertising as au pairs

[deliakate]

who are aged 30 and up and already living in the UK (although foreign nationals) are not strictly speaking 'au pairs' are they?

Would this affect the legalities of having them come to live with you to help you out?

No, not at all. You would always need to check their right to live/work int he UK by seeing their passport. Equally if you can find a UK national who is willing to do "au pair" duties, then that is also fine.

If they are EU citizens then there are no legalities - it's the same as employing someone from the UK. There isn't an au pair visa category anymore, so generally "au pair" is just a job description. Their age is irrelevant.

'au pair' is really the way of decribing the relationship they have with the host family i.e. living on a par or equal footing rather than in an employer-employee situation...

cue heated debate...

As long as they have the right to work in the UK they can do anything they like, including jobs traditionally referred to as an au pair role....

As with anyone doing that job you'd need to employ them with a contract, deduct tax and NI if over the threshold and give them paid holidays.

The conditions of the job have changed so dramatically I feel it's quite misleading as far as the UK is concerned to actually call them an au pair anymore.

The conditions of the 'job' haven't changed though. It should still be 25 - 30 hours per week and they should be treated as a member of the family - sharing in family meal times and other activities, and doing a share of the household chores (not all of them).

But it no longer has to be - it can be more hours (unless it's an A2 national). And it's no longer at all regulated by anyone unlike when you needed to apply for a visa, the employer is obliged to be an employer, the workers gets paid holiday, they don't have to take a language class....

Those are all working conditions which didn't apply under the old scheme. They're there to protect both sides but when all is said and done the au pair scheme as it was intended was very different to the conditions for both parties nowadays.

thanks everyone. What is the pay threshold, does anyone know off hand?

The traditional hours that apply for people working in au pair roles must still apply. If they don't and there are no limits then someone could effectively be asked to work 40 or 50 hours a week but only be paid a pittance. This would just be an abuse of the intention of having an au pair.

No such thing as payscales really, OP. It depends on the duties, the AP and their experience, the hours, your location, any additional perks....but most employers try to keep it under £97 a week for tax/NI purposes.

The pay/hours ratio should still apply but people ask, what, 25 hours for £70/week? There's nothing to stop that ratio from being scaled up because there's no max hours. And people often ask on here whether they can get their AP to do 35hours a week for more money. Which they can now, but couldn't under the old scheme IYSWIM. Nothing says an AP job MUST be 25 hours a week except in the A2 national situation. Anyone else has every right to take on any number of hours at any live in wage they see fit. Doesn't make it fair but they have that right. When I was looking for my first live in nanny job I was being offered around £150/week for 60 hours live in and I had no qualifications of experience then. The wage offered wasn't a pittance bearing in mind my profile, and it was roughly double an AP wage for double the hours and arguably heavier duties.

APs have just become the cheap, lower end of the scale of live in childcarers rather than being particularly special any more. Very few families have the intention of the original scheme when they get an au pair. A nice family entering into the spirit of things will observe the ethos of the scheme but nothing says they have to and that's what's changed.

The working time directive would apply though, so Frak's 60 hour weeks would be illegal on an ongoing basis.

Au pair is a job description that applies.

Rather than rehashing an old debate; I would say beware any that meet the description (over 30, foreign) as many of them appear to not have the right to work in the UK, or it has expired. Unless they are an EU/EAA national they will require a work visa, and it is your responsibility to check they have to (but not to get it for them) before they start work; if you illegally employ somebidy you could face some hefty fines.

Working time directive doesn't apply to nannies and other domestic employees, DIOM... Otherwise a lot of people would be in trouble.

I think frak you are confusing the working time directive with the national minimum wage.. aren't you...?

Are you saying that working time directive doesn't apply to nannies for instance? and they shouldn't have minimum holiday requirements or time off for breaks etc.? Which knowing your views in the past then I guess you aren't

If you do mean NMW - this doesn't apply to all domestic employees though. Only to au pairs and people who join in with family activities and share the household chores.

60 hour weeks can be legal as DioM as I'm sure you know. I rarely work more than 48 hours in a week myself but because of back to back shift weeks, then it would have given the off duty computer a mare, so almost all staff I know signed the disclaimer often without realising what they were signing..!

I didn't mean as legal AS DioM (I'm sure he's legal)...! just addressing the point to him that nannies could be asked to sign the waiver...

Working time directive is the 48 hour week isn't it? I don't think that applies to domestic staff, and they aren't entitled to breaks either.

Nope I mean the working time directive - here which controls the number of hours an employee can be 'forced' to work. Waivers are, of course, possible for other types of workers but 48 hour week simply doesn't apply as nannies come under domestic servants in private houses, whether live in or out, as they are a specified exemption. Breaks do apply but that's often difficult for a nanny to fit in so most grab it when they can i.e. when children are napping.

They're entitled to minimum holiday as any employee is, regardless of how many hours worked in a week and whether live in or out. I was most heartened to see the BAAPA recommending that au pairs are now given the statutory 5.6 weeks paid holiday but that is entirely separate to the working time directive.

NMW typically doesn't apply to live in staff as the 'household chores' clause can be interpreted so nursery duties count as household chores, which is part of the job description. And of course most live in employees clean up after themselves.

ok - just reminded me we discussed this before. I still find it debateable that a nanny is considered a domestic servant in a private household or should be excluded from protection under the WTR for working excessive hours. The Directgov site you reference doesn't specifically identify nannies as being domestic servants. Do you know anywhere that does?

I always thought WTR is based on European Working Time Directive anyway which has given us minimum # days holiday, paid breaks, and 11 hours rest for every 24 hours etc. so wrt your point about au pairs and 5.6 weeks holiday - how is this separate to the working time directive?

An au pair isn't a servant, since they are regarded as being on equal terms with the family - so they wouldn't come under any WTR exclusion (as a domestic servant). Thus how can you rationalise that there is no upper limit to their hours. Frak you say "nothing says an AP job must be 25 hours per week", but every au pair web site you look at including BAPAA and the European Committee for Au Pair Standards state that au pairs work 25 - 30 hours per week.

I believe NMW applies to all domestic staff apart from au pairs or people who specifically live with and are treated as if they are a member of the family. Maids, butlers, gardeners etc are not necessarily (and usually aren't) treated as members of the family. If people are domestic staff but are provided accommodation then an allowance for accommodation can be made, which added to their salary should still bring them in-line or above the NMW. Nannies are a strange case I guess because most families would treat a nanny as a member of the family, but some might not - especially if they don't live-in. Nannies should be getting paid more than the NMW anyway so not relevant really.

And going back to the WTR, if a nanny is live-out and they come and go to/from work at the time agreed in their contract, how can they be regarded as a domestic servant..?

Au-pair seems to be the modern equivalent of Servant it seems.

The Working Time Regulations has indeed been discussed before. As I said then, some parts of it almost always apply (like minimum holiday), some don't apply to domestic staff (like maximum hours) and some can be opted out of.

The term 'domestic servant' is a bit outdated and has inappropriate connotations, but the fact is that whether they live in or live out, nannies care for children in a domestic setting (as opposed to a non-domestic setting) under a contract of service (as opposed to a contract for services) - it is therefore not wrong to call them domestic servants.

The statute does not say 'domestic servants and nannies' or 'domestic servants including nannies' for technical reasons which I won't go into here.

When I said the WTD doesn't apply I was referring to the hours in reply to DIOM who said that 60 hours would be illegal. It's not, as there's an exemption specifically referring to domestic workers which nannies as explained fall under. I then specified in my second post that the part I was referring to was the hours worked in a week, but other parts such as holiday always apply.

Everything on websites/from the BAAPA is advice, not legislation. Therefore nothing says it has to be 25-30, it has become merely a recommendation. The relevant legislation is employment/immigration legislation and only one part of that covering a very specific situation limits hours worked.

TBH au pair isn't a new term for a servant and most people have the sense to only use au pairs for wrap around care, which isn't usually more than 5 hours a day. The big differences are that they're expected to be increasingly capable of sole care, people have higher standards wrt cleaning and people expect them to be capable of FT care in school holidays. What people forget is that just because they have to provide a contact etc like they would have to for a nanny (so higher expectations of the employer) it doesn't mean the standard of au pairs has increased to nanny standards, yet for some people the increase in expectations on one party translates to increased expectations of the other. Just because au pairs can do more doesn't mean they're capable of doing more. They're often still inexperienced teens, but equally you can find au pairs with lots of experience/relevant qualifications who are capable of longer hours/more responsibilities but want to be au pairs either for the language or the experience and legally they can be, but because they're foreign nationals they (sometimes innacurateky) get termed au pairs. But just because they exist doesn't mean everyone's like that...

Personally I'm confused whether au pair refers to the person spec (meaning a young foreign national, which it shouldn't any more) or the job. But some people are looking for an au pair person to do a job with longer hours, which is perfectly legal, and others are referring to au pair the job, which is the 25 hours etc. Still waiting for replies to my lengthy letter on the subject to various agencies

A newly qualified or inexperienced nanny is not necessarily going to get NMW, although if you included the ridiculously small accommodation offset it might. I doubt people do the maths that carefully though. Some people will take a lower paying job because they like the family or for the experience.

The biggest problem IMO is that people think 'oh I could have a young foreign person to do this, there's time for them to take English lessons', then thinks 'I need an au pair, that'll cost me £70 a week', then they sit down and figure out everything that needs doing. That's the reverse of what they should be doing! Job spec, then payscale, then person spec...

Ahem. Long post but complicated issue and it depends on so many variables. What is written and permitted is not necessarily accepted practice - e.g. no max limit on working hours, but traditionally 25 hours - but relying on accepted practice is very open to abuse because so many restrictions were lifted.

Ah I see where I said it was separate. I meant it was entirely separate to the issue of hours and the bit of the working time directive we were discussing that nannies were exempt from.

I'm going to start using some form of referencing! Footnoting might be difficult, so does anyone object to Harvard?

You won't be able to find any source - 3rd party web site, government legislation or otherwise that supports your argument there is no longer any upper limit restriction on working hours for au pairs.

On the other hand EVERY site that provides advice (in some cases legislation in the case of other countries) concerning au pairs, recognise it is based on 25 - 30 hours. We did not sign up to the council of Europe au pair agreement but this agreement forms the basis across all of Europe in how au pair placements are regarded.

Much UK legislation such as NMW still recognise the special working/living arrangements that an au pair has, and UK Border & Immigration still define what au pair work constitutes and what it doesn't.

Yawn.

You are absolutely right Treesa, the law is couched in general terms so does not refer specifically to butlers, maids, nannies, au pairs or any other sub-category of domestic servant.

For clarificaton, this whole thread has only been about the situation in the UK so legislation in other countries is irrelevant.

You should be aware that the NMW does not refer specifically to au pairs either, so are you saying that it doesn't apply?

For reference, this is the text in the NMWR 1999 which provides the exemption for au pairs...

(2) In these Regulations ?work? does not include work (of whatever description) relating to the employer?s family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied.

(a)The conditions to be satisfied under this sub-paragraph are?

(i)that the worker resides in the family home of the employer for whom he works,

(ii)that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities;

(iii)that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and

(iv)that, had the work been done by a member of the employer?s family, it would not be treated as being performed under a worker?s contract or as being work because the conditions in sub-paragraph (b) would be satisfied.

(b)The conditions to be satisfied under this sub-paragraph are?

(i)that the worker is a member of the employer?s family,

(ii)that the worker resides in the family home of the employer,

(iii)that the worker shares in the tasks and activities of the family,

and that the work is done in that context.

There's no longer any upper limit because there's no limit at all. There's no limit because the au pair scheme, rightly or wrongly, got scrapped in the UK. The fact that they're not referred to in specific legislation means that statutory legislation applies. Many parts of legislation don't refer specifically to job titles but you can't argue it doesn't apply to them. Rather the rule of thumb says it applies unless it says it doesn't and even then it's broad categories rather than specific jobs.

I'm pretty passionate about the rights of people working as nannies, au pairs etc, often in very precarious situations, but that also means defending the right that an EU citizen or anyone coming on a visa with no work restrictions has to take up any job they choose, for however many hours.

I wish there were guidance. I'm lobbying for there to be guidance on what exactly consitutes an au pair role. But as it stands there isn't any, which means that legally you can employ whoever you want to do whatever you want under whatever conditions you want (as long as the minimum rights of the worker are met and they have the right to do that job within the UK) so you can advertise for an au pair, meaning a younger person aged between x and y blah blah blah, to do whatever you like, for however many hours you like. But we go round and round in circles on this argument, even though I think we fundamentally all think and want the same thing. There's just a fundamental difference between what one can do if one wishes and what the au pair scheme was intended for at the moment, which opens up huge opportunities on the one hand but makes exploitation a bit easier on the other. That said it's not longer permitted to not give your au pair paid holiday etc etc. Overall I think things have improved and I'm glad that more people are taking the rights of workers doing what would traditionally be considered an au pair job seriously. That makes me sound very Trade Unionist.

The only thing that would re-regulate the whole industry would be reintroducing a specific immigration cateogry for au pairs, but I very much doubt that would be legal under EU law as there can be no restrictions on the free movement of workers except in the case of recent accession members (the relevant part of the TEC is Chapter 1 of Article 39, particularly points 2 and 3 in the 2006 version which is what I'm working from as it's in my textbook and what I've quoted in my letters to people), and an au pair is considered a worker as the Payir case proved. I can find several sources which prove that those with unlimited working rights are permitted to take up placements as an au pair such as here (though they lack a definition of au pair) and I can prove that the UKBA has deleted the mention of au pair placements here, which means the only reference is form BR3.

The other option would be for the government to issue a statement on what is or isn't an 'au pair job' but that would, I feel, be a little complicated.

But we're going round in circles here. I'll maintain the deletion of an actual definition has fundamentally changed the job and other people will argue it hasn't. What it comes down to in the end now is the particular host family and whether they're willing to consider that person 'au pair' (literally: at par) which is relatively rare nowadays, or whether they're employing them to do a job.

yawn as well mranchovy but I see you joined in the debate too... ;-)

I'm discussing it because many families come on here and see this 'advice' saying it is fine (or at least stating there is no legislation to prevent them) asking their au pair to work unlimited hours.

frak - yes I probably agree with some/most of what you are saying. Remember importantly though it's a cultural exchange program. Young people from OTHER countries need to have consistency and understand what an au pair is and what it means to work as an au pair in other European countries is the same in the UK as it is in France, Germany, Sweden, Romania etc . These girls are registering with agencies in their home countries who publish that au pairs can be expected to work for 25-30 hours.

If statutory legislation does apply frak, then au pairs come under the exception allowed in NMW legislation only providing families meet the requirements of the NMW legislation. Importantly the condition "that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities;".

My point is that if families ask an au pair to work 45 hours a week, they aren't really working as an au pair.

You've said it yourself in your last sentence. Au Pairs should be considered at par. If families consider themselves not 'at par' then they should pay the NMW as they would need to do if they were butlers, maids, gardeners etc. [and yes if the butler or gardener was treated as a member of the family exactly as defined in the exception then they'd fall under the NMW exception too].

It always amazes me that we manage to agree on the basics whilst arguning so passionately with each other.

What we agree on (though feel free to disagree with this):

APs are very open to exploitation and are deserving of protection.

Such protection as exists is complex and most people are no aware of it (including some agencies).

What we disagree on:

How this protection should be best put ion place (through tight contracts, through legislation, through immigration controls).

The role of agencies in all this (sorry Treesa couldn't resist).

There is an argument that we should agree on how to achieve the objectives we agree on and then lobby for it - the Committe for the Reform of Au Pair Employment Relationships perhaps?