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?

But what does that NMW legislation mean? It clearly means they get a room and use of a bathroom or kitchen etc, doing their share of cleaning and washing up (often as part of their paid hours) but leisure activities could be defined as use of the family TV and Internet. It's a very grey area what that really means.

A family asking their au pair to work unlimited hours for a pittance is going to have a very unhappy au pair. And every time we point out it's legal for EU citizens or tier 5 visa holders to work unlimited hours we point out that they should be paid accordingly. Not everyone makes the assumption that they can pay the same and get more work! Quite often it's 'I need 35 hours a week, can I get an au pair?' to which the answer is yes but you need to pay more to make it worth their while. Another is 'can my au pair look after my preschooler?', again the answer is yes but remember your au pair isn't going to (in all likelihood) be qualified for that etc etc.

An au pair isn't the same in all the countries you mention anyway. Each country has it's own quirks about who can/can't be an au pair and in most of them you can employ someone to do an au pair job without calling them an au pair if they're EU anyway. I have no intentions of jumping through the hoops to get an au pair as described under French legislation, I'll be making the most of free movements of workers and getting a British or Irish national to do exactly the same job. Why? Cos I don't want them speaking French to the DC and I want to pay them more than the state's maximum amount.

Anyway, all advice should be read in the context of the thread it's contained within. People will say different things on different threads. I will openly say you shouldn't IMO leave an AP in charge of an under 2 for example but you can if you want. It's up to you to determine whether they're appropriately qualified and are happy with their language ability.

In this specific case someone over 30 can probably be an au pair but they wouldn't really be called an au pair. See above/below for why.

Agreed

Agreed

Disagree that we disagree! with point 3 - I don't think we've ever debated how it would be best to put any protection in place. Maybe this has been suggested with other posters though..

Disagree that we disagree! with point 4 - Not sure why you're apologising but this discussion hasn't had anything to do with agencies except referring to their published guidelines as a reference point that most people go by - in the UK or other countries. Unless you see those guidelines as being incorrect in that they state 25 hours etc?

If you want to talk about the role of agencies, then families who go via an agency are more likely not to exploit their au pair in terms of the hours expected - and the au pair has somewhere to go to change family if they are being exploited. I can say hand on heart that this has never happened to me, and even when we organised hosting of our au pairs under our own steam we were highly concious of keeping within the law.

An au pair is a job description, the way I see it, nothing more or less.

Girls applying for the role have certain expectations as do families about what the role entails. It doesn't really matter if it is enshrined in law anyway - if the job doesn't match your expectations, you go.

Whether they qualify for minimum wage(i.e. how can people get away with paying £70 p/w for 25 hours) will depend on the criteria laid out by Mr Anchovy above and involvement in family life etc. it's all on the direct gov site. IF your AP is working 40-50 hours a week, loads of sole charge, limited involvement in leisure activities with the family, etc I think it's likely a tribunal would find you in breach of the rules regarding whether net minimum wage applies or not. Not in breach of the AP JOB DESCRIPTION RULES but in terms of who qualifies for NMW.

I'm not sure we need any more legislation, just more clarity about what rules already exist in these areas.

Sorry to pleb out the discussion with an incoherent post. There is clearly some more organised thinking going on here.

Harriet I think your post is as valid as any other.

Harriet - a very competent post I though, and yes whilst an au pair could take action as you suggest they would (a) have to have the same detailed knowledge of the legislation as MrA (b) know how to bring an action and (c) be prepared to bring an action, and realistically what are the chances of that happening.

Treesa - Point 3 - within this thread (though perhaps not direct suggestions) there are various suggestions, it would appear there is a range from the American model at one end (accredited agencies only, can only be employed through an accredited agency) which would fall foul of European free movement laws, to the leave it as it is which still leaves APs open to exploitation.

Point 4 - no not on this thread, but else where, some agencies do make the situation worse; some agencies do hand out incorrect advice (e.g recent placement of an American nanny) or mislead familys and APs (posts ad nauseum about smokers). And not all provide effective after placement service (again previous posts my AP is not working out and the agency is offering a 50% refund and no support).

So what is the solution. Accreditation of agenices (and I don't just mean membership of BAPAA but a proper accreditation with checks in place)?

Accrediation of introduction service, i.e. sites like APW etc? And a clear distinction between what is a full service agency and what is an introduction service.

Any other thoughts?

In my opinion agencies CAN BE the main reason for the misinformation in the market. They are some of the worst offenders. We've never used them but Brick Au Pair's site is reasonable in terms of the info it gives out. I love Abacus but the website is terrible.

There are people who very willfully want to believe that the rules haven't changed too because they don't want to do things like pay holiday etc.

I think the government could issue some sort of directive that draws attention to the fact that:

1. The AP visa category no longer exists.
2. The AP role still exists, but it is a job description agreed upon between the employer and the employee
3. APs have the following employment rights just like nay other employee, xyz. Also mentioning that Tax and NI apply over a certain level of earnings and that unlieke what some agencies say it's nothing to do with being BRitish!!!
4. The rules about national minimum wage apply under the following criteria. Your AP may or may not qualify based on the job descritpion you have agreed with them. IN THE TRADITIONAL AP ROLE WHICH INCLUDED THE FOLLOWING XY. it is likely they would apply You need to be aware that a job description which deviates very substantially from this in terms of hours, duties and participation in family life may lead a tribunal/whomever [not sure exactly who it would be arpart from this.] to conclude that the AP is entitled to NMW.
5. Agenices who facilitie someone coming to the UK who is not legal to work in this country or gives advice that tax evasion is okay could be liable for fines (rather than regulating as such.)

Sorry in the traditional AP role it is likley they would be exempt...

APs have threatened employment tribunals though - anyone remember the poster on here whose AP was going to go through the process? They would just need to find a good lawyer or talk to someone who knows about the legislation at the CAB for example.

Anyone know if there's been a test case? I assume there was one about holiday which caused the BAAPA u-turn.

Absolutely Harriet, you have hit the nail on the head.

Unfortunately I think the likelihood of the government doing this is very unlikely, and there is not (as far as I know) any group that is interested in lobbying for them to do so. Anyone interested in starting one?

Not sure if I'm on the right thread here...?

I can't see where there's been a suggestion we should move to an American model of accredited agencies or anyone has said leave it as it is. We weren't talking about agencies until you brought it up DioM..

Re. point 4 then yes there are good agencies and bad agencies but that is another story. I was talking about the role of agencies and what they can do (after you'd raised it) in situations where families may explot working hours.

In terms of a solution to excessive hours of work. If an au pair is with an agency then she has somewhere to go who can try to resolve the issue or find the au pair another placement. If the au pair is there under her own steam then apart from friends I guess she can go to her own embassy, the police or an employment tribunal (if she knew how to go about it so I agree with your point to Harriet above).

Accreditation of agencies isn't going to help to stop long hours in my opinion. My agency doesn't contact me to check my au pairs weekly time sheet! and would only know of an issue if there was a major problem - which there isn't with us. But if I want to invite someone to be an au pair then I should be able to do it and shouldn't have to go through an agency if I don't want to. As you say it would fall foul of free movement.

The only thing that I can think of is that au pairs independently have the opportunity to register their contract/letter of invitation that the family has used with a 3rd party body. If they don't have a letter of invitation or contract then not sure what they could do except log this fact. If the family don't uphold their part of the contract then a formal complaint ca nbe made. This system is open to tit for tat reports on families and would require lots of funding to set up. Who would pay for it. There would be a massive cost in publicising it to au pairs (in all other languages) to make sure au pairs were informed about exploitation and what to do.

blimey this thread moved on four posts since I started scribbling!!

You could start a AP Employers Association. Employers would subscribe, contracts must be deposited, APs must be made aware of rights, and offer a dispute resolution service.

You could ask agencies and the introduction sites to publicise it and if it became widespread enough it would act as any extra thing to add to your recruitment profile (through agency or otherwise) that you were a genuine employer who would respect the APs.

And I do like the idea of a small amendment to immigration legislation.

Where an employment agency or similar places an individual as a worker not entitled to work in the UK in a domestic situation they shall also be liable to fines.

Not removing the liability from the employer but adding it to the agency as well. That would wake them up.

Well, I guess they'd have the same recourse as any other employee in the UK. Exploitation exists in other professions. The main thing is making it more transparent how to get help...

Good idea but what about funding..? Unless dispute resolution is done by volunteers from Mumsnet!

Can you imagine a dispute resolution committee staffed by you me and Frak, we would need the APs to referee us.

Funding by subscription (annual) and fees for service, e.g per contract registered.

DIOM, that is more or less what I am thinking of, although Treeesa's point about funding is spot on.

I think that for dispute resolution you would have to point to Citizens Advice Bureaux, ACAS etc.

Agree - the committees would be in session for weeks..!

So the family pay the annual subscription presumably..

Problem is if a family do truly go it alone i.e. newspaper, cornershop postcard or gumtree as opposed to AP World or a proper agency there is still no pressure to perform this registration.

It would be the 'law abiding' families who are above board paying for a service they probably woudn't need (since they go by the book), and the families who do abuse the system wouldn't bother to register.. It's a bit like the dog licences issue of a few months ago.. Irresponsible people will carry on without any care..

DIOM
I can't see why it wouldn't be straightforward to add the small amendment to immigration legislation regarding fines for agencies who facilitate recruitment of employees (including APs) who don't have the right to work here - it shouldn't just be the family who are liable. In fact, it probably already is illegal somewhere. This is the most achievable thing, in my opinion, out of this discussion. (NOt because I thought of it!)

I don't know what to do, practically speaking, about agencies that willfilly give the wrong advice regarding things like tax, ni and holiday. and second jobs. Which is why there has to be some sort of directive, I think. EVen nanny agencies get this wrong. How can you legislate against bad legal advice. Maybe - by voiding the Terms and Conditions of the agreement? Would the family then sue for the fee? Complicated.

It's always buyer beware.

How would you police AP World, as well, which is domiciled in Germany?

you can see why there wouldn't be much will to do anything.

APW isn't an agency so wouldn't be covered anyway, but you would ask them to promote it under there info for au pairs section.

Well at the moment I'm a pressure group of one sending irritating and lengthy letters which get ignored. Except by HMRC who confirmed that any earnings over the various thresholds are taxable with a slightly eye-rolling tone and the WRS saying they're looking into whether APs need to register with them.

Anyone want to come join? It doesn't have a name or anything.

Are AP agencies employment agencies? Do all employment agencies have to register with the REC? Because I know they have guidelines, including the checking eligibility to work, and I'm pretty sure employment agencies don't have to check but temp agencies do. If they count as agencies there are 2 bits of legislation - the 1973 Emploemt Agencies Act and something about conduct from 2003(?) - but I can't remember what they mean in practice and I'm on my phone so can't check easily.

I don't think you'll ever regulate it but it might be possible to have some kind of registration as there is in many countries for au pairs which at least would mean there was some point of contact where they could be given info.

Or maybe we just need to crash AP websites and incite revolt.

I'm going to disagree and say we wouldn't be in session for weeks though In specific situations we often agree on what's reasonable or not, where families have made an agreement and one party isn't abdiding by it. What we don't agree on is what the standard agreement should be. Or maybe we do in the case of a purely traditional role but then how do you leave room for unusual situations or families who want an au pair to speak their mother tongue?

I realised last night that this is the third time I have been involved in discussions on this topic and come to the conclusion that 'somebody must do something'. Well this time I have. Please come and help me out before I come for you!