Is an au pair an employee?

[willowthewispa]

I was wondering this after discussions on several other threads. The visa category of "au pair" no longer exists, and as lots of girls are EU anyway wouldn't need a visa to work here. Obviously NMW doesn't apply if they live in, and as most (all?) au pairs earn less than the tax limit this isn't an issue either.

There doesn't seem to be a clear answer on this.

I don't think there will be a clear answer on this. Court cases will need to occur - maybe they have already... anyone know?

Something to read though: Who Is An Employee

Contract Law is complex. We also now need to factor in EU Directives - so the question could be pre-phrased as: Is an au-pair a worker?

I would think that EU 'au pairs' can either be considered employed as live in 'mother's helps', or as 'guests who get pocket money for helping out'. I prefer the second description. (If I think about my children growing up and needing to get better language skills I would prefer this description if they became APs). The relationship between a host family and au pair is very different (in my experience) than that of a family and nanny. And the horror stories are equal in 'awful au pair' and 'exploitative host family' numbers.
Legally, most APs will be exempt from minimum wage, be working way under the working time directive, and earning under the NI/tax thresholds. Holiday entitlement is one difference I guess.

Actually, thinking about it, if I thought of my AP as a live-in mother's help I would make her work all 30 hours that I 'pay' her for rather than the 17 hours which I ask for...good thing that in my mind she's a guest then

I was an "au pair" for two years in Germany, and I was definitely employeed - I had a contract, paid holiday, monthly pay into my bank account, and health insurance. It was on a "mini job" basis in German employment law as I earned under 400 euros a month - I guess something equivalent to the £100 a week or whatever it is tax limit here. I knew American girls who were definitely on a "cultural exchange" as an au pair, had an au pair visa, had to meet age criteria, could only stay for a year etc. Although we were paid the same pocket money and did the same role, as an EU citizen I was certainly treated the same as a German girl would have been doing a live-in home help role.

I wonder if choosing to see them as paid guests puts au pair employers/hosts in a vulnerable position if things go wrong though?