AP employment status

[LadyHarrietdeSpook]

Having just seen this on an AIBU thread, it seems to me this link is new. I've never seen it before. Has anyone else?

It's quite amusing the government seems to have made a point of NOT saying whether they are or aren't employees.

AP STATUS

Agreed. That is the most unhelpful thing I have read for a while! I rated it accordingly!

So, er, what are they? And what did they base that on? And how does the Payir judgement, which is v clear, fit in?

Hi I am new to this discussion but have found it very interesting. I can categorically say that Au Pairs are absolutely NOT employees.
They are to live and be treated as part of the family.

On what basis? When a site supposedly sanctioned by the government itself is stating their status is unclear?

And the legislation which Fraktal refers to suggests otherwise?

Jeez. This chestnut again.

gillworkignmum, on what legal status do you make these claims?

Section 21 of the attached shows UK tribunals upholding the status of au pairs as employees, entitled to all usual Employment Law protection.

see here

You can read more if you google "payir" - this was the pivotal case which set the precedent.

Despite the clear acceptance by UK tribunals of European Court rulings on this matter, the UK govt likes to sit on the fence in official documents aimed at employers. Why I have no idea, but it matters not. Au Pairs are employees.

As are nannies (who are employees) if they live in and are exempt from min wage status. One does not preclude the other.

I believe that page appeared in October or November last year. I made a Freedom of Information request about it last year and learned a number of interesting facts including the following:

• the information on that page has not been published in any other way by any government agency - no press release, no guidance, no public consultation etc.
• the Department for Employment published this information following a meeting with the British Association of Au Pair Agencies
• the DfE did not consult with any other agency (HMRC, Home Office, ACAS etc.) before publishing the information

Is anyone else interested in getting this nonsense removed from BusinessLink?

I know nothing about this but are there not different definitions for employment. IE:

1. residency rules for non-EU nationals
2. UK employment law rights
3. UK tax status
4. minimum wage rules?

Sort of younger. Employment is always undertaking work for pay, but self-employment essentially means you're your own boss.

1. is to do with undertaking paid work within the definition of their visas d certain types of employment (eg self employment) may be prohibited, and 3. and 4. are the province of HMRC and to do with thresholds and employment status. An AP is clearly not SE and unlikely to earn enough to pay tax, hence the confusion most of the time.

mra I'm with you on that. Why can we do? It's disgraceful that this was done without reference to precedent, on the word of a pressure group composed of agencies who are paid by parents and not au pairs and therefore have a conflict of interest. I find it disgraceful that, given there is no legal definition of an AP and no specific exemption, it is apparently okay to deny them all the rights accorded to someone in employment. The info and examples are ridiculous - reading that it seems you have to take your AP on holiday with you

If we want them to make (reinstate) an exemption how would we push for that? Because it would be much easier than the current state of affairs.

Yes there are different rules for different situations

1. residency rules for non-EU nationals
The situation here is set out fairly clearly in the Youth Mobility Scheme under Tier 5.

2. UK employment law rights
This is the exception - there is no statute or official guidance, but there are clear judgements in both the High Court and the European Court of Justice. The DirectGov 'information' does not recognise these judgements - for instance the High Court has stated "The work of a person who works 5 hours per day, 5 days a week, cannot be regarded as purely marginal and ancillary" so the normal 25-30 hour au pair week means they are included in UK employment rights legislation*.

3. UK tax status
HMRC have set out the criteria for when they consider a person to be employed for PAYE purposes here. It is fairly clear that an au pair is employed according to these criteria.

4. minimum wage rules?
There is a specific exemption from NMW for workers who "share in the work and leisure activities of your household are treated as part of the family in respect of the provision of accommodation and meals and are not charged for these", which covers most au pairs and live-in nannies.

• You might therefore wonder what work would be "marginal and ancilliary" - there was a good example recently on Mumsnet where a family were looking to provide free accomodation to a PhD student in exchange for a couple of hours homework supervision each night; this IMHO would not be employment.

Fraktal, I don't think the DirectGov (mis)-information changes anything -it has no official status. However it is misleading, and when I called ACAS they referred me to that page so Something Should Be Done.

Ideal would be a test case - the problem with Payir is that it was common ground between the parties that the individual was employed and so there was no judgement on this fact (which is why when referring to Payir it is always necessary to note that this case confirms the status of au pairs as workers - but as UK employment legislation now refers to workers as well that is not much of a problem). I cannot see that anyone would fund a test case.

So I would have thought some or all of the following would be the right way to go:

• form an organisation representing the interests of au pairs and/or their employers
• web site with relevant information
• promote that organisation to DfE (et al) so that it is consulted on relevant matters
• write to MPs
• write to Ministers
• press release to Employment/HR trade bodies, trade press etc.
• press release to law firms/chambers
• seek pro bono funding for an opinion from counsel
• etc.

If you want to help, please let me know by leaving a message on my site or sending me an email ([email protected]) or PM.

It might not change anything (legally speaking) but people do reference that website frequently so it could have huge implications because it' just hasn't been thought through.