A definition of an Au Pair now on the new .gov website

[BAPAA]

BAPAA have recently been liaising with the government since the replacement of the directgov website to the new .gov website.
We do have a definition of what an Au Pair is on this site. Please do feel free to read this at:

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

erm... isn't this a matter of great debate since most "au pairs" not come from the EU and are therefore entitled to the same working rights as anyone else?

And, does this really say that au pairs are not entitled to paid holiday? hmmm... that seems a bit... well... tight.

erm... isn't this a matter of great debate since most "au pairs" now come from the EU and are therefore entitled to the same working rights as anyone else?

Hi Strix, yes you are right to an extent that Au Pairs are entitled to paid holidays and do accrue 1.66 days per month. All BAPAA member agencies do promote this under the BAPAA guidelines.
We have been promoting to all host families through BAPAA member agencies this holiday entitlement since September 2010.
Prior to this date, the old holiday entitlement for Au Pairs was traditionally, 1 week's paid holiday every 6 months.

Au Pairs are not entitled to all working rights though, only holiday entitlement and this is due to their working hours, days off and duties that are set by the host family.

Anyone reading this should be advised that the BAPAA's view of what an au pair is and what legislation may apply has not been tested in the courts.

Both English and European courts have ruled in a number of cases that individuals who are working as au pairs are employees or workers and do have the protection of legislation protecting employees or workers generally in the UK.

Just to back up mranchovy the Payir case with particular reference to the fact the court deemed that the au pair in question 'offered services which constitute genuine and effective economic activities' and ' that a social objective pursued through granting leave to enter as students or as au pairs, together with the related right to work, does not, of itself, take away the lawful character of the activities performed by the persons concerned and, consequently, does not prevent them from being regarded as ?duly registered as belonging to the labour force? of the host Member State'.

Although the case in question is for Turkish nationals the principle is the same.

leave to enter the territory of a Member State as an au pair or as a student cannot deprive him of the status of ?worker? and prevent him from being regarded as ?duly registered as belonging to the labour force? of that Member State within the meaning of Article 6(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association.

It is an odd decision imo, and probably spells the end of Turkish people becoming au pairs in the EU I would think.

If people are being forced to give au pairs the same rights as employees by the Courts then this is the end of au pairs. You cannot have it both ways. You usually wouldn't have your employees being part of family life, taking them out on family outings, paying their bills, etc. etc.

Well Turkish nationals can no longer au pair in the UK anyway but that doesn't have anything to do with this decision as the system changed before this judgement. As strix pointed out most au pairs are EU nationals or on the youth mobility scheme and therefore have exactly the same rights as far as working is concerned as anyone else. The only official 'au pairs' left are Romanians and Bulgarians who come over on a specific visa. Everyone else is entitled to be treated as a citizen of the UK would be WRT working rights.

There are 2 different points of law here. The first is the employment side which covers stuff like notice, holiday pay, sick pay (if you're above a certain threshold), protection from discrimination. The second, which is what most people confuse with the first, is the right to NMW. Because an au pair lives with the family, is fed and housed by them and joins in the daily activities they are exempt as is any other worker who has accommodation provided.

I don't see a conflict here. It's an obligation to treat au pairs fairly and allows them to access the protection afforded to everyone else by the legal system.

Until the Government reintroduce a specific agreement you can't make the distinction between a foreign national working as an au pair and one working in McDonalds because the same distinction doesn't apply to British citizens.

@fraktion actually the NMW exemtion is very tightly worded so your statement about "any other worker who has accommodation provided" is not accurate. Essentially the only roles that may be covered by this exemption are au pairs, nannies, care workers and some other domestic employees.

Most workers provided with accommodation are entitled to NMW with a reduction of no more than £4.82 a day.