Au Pairs - legal requirements /holidays?

[FeatheredHeart]

I've just been asked about holidays by an au pair applicant. I'd like to know what the law says and also whether you pay your au pairs holidays?

Bestbear.co.uk says "Au pairs tend to stay for six months and this usually means the employer does not give them a paid holiday - the rationale being that the au pair only worked part time. However, if the au pair stays here for longer there is a case for the employer to give them paid and perhaps some unpaid holiday. "

I know there was recent discussion about what the legal requirements are (e,g, 28 days/ year or pro-rated) but I can't find any or even any guidelines under the Home Office (Border Agency).

Can anyone point me to where these legal requirements are on a .gov site?

I am not sure about the legal requirement if there is one as I think the employment status of au pairs is debatable. However I give mine fully paid 2 weeks (ie 10 working days) per 6 months plus all bank holidays that occur within that time period.

Now that the au-pair visa category does not exist, someone from the EEA would in my view be entitled to the same holiday as any other worker working in the UK.

BusinessLink.gov.uk : Holiday Entitlement Calculator - BusinessLink: Statutory Holiday Entitlement - ACAS booklet about Holiday Entitlement

If the au-pair is coming to the UK under Tier 5 (Youth Mobility Scheme) then I have no idea what holiday entitlement they have. It may be the same.

I have given any that stayed 6 months a week's holiday, or pay. They didn't work Bank Holidays either. Nannynick is usually good at answering this type of query.

Thank you!

Gosh that seems to say 5.6 weeks leave a year- sounds more than anyone I know is giving

Yes, 5.6 weeks. I would suggest that parents considering an au-pair have a chat with ACAS to see if ACAS view an au-pair as an employee under UK employment law.

We are giving our AP about 5 weeks fixed and then around another 5 days that she can choose when mutually convenient - I will be doing a PGCE so need the extra help in term times, but less help in the holidays. She will be with us Aug-July. We will give her the option of taking the extra days at the end of her contract if she wants to stay on for a week to sightsee etc.

Au pairs are considered as employees by the European court. Don't know how to link from my iPhone but will post the judgement from a computer later. It is on here though, somewhere.

Generally they would be entitled to 5.6 weeks holiday, including bank holidays, a notice period, a disciplinary procedure - there is a very helpful .gov link which talks about domestic employees which again I will post when I get to a computer....

Do you allow them to take holiday before the first 6 months is up?

Thanks for all this. I am giving mine 2 weeks off at Xmas- although that is my choice not hers. Is that ok?

I am going to giver her 2 other weeks off when we go away and then I guess she will ahve some other times that she wanst

Oooh this is loaded isnt it?

Au pairs are employees there is case law to back this up that is linked on another thread discussing this. Bestbear.co.uk is wrong.

As employees they are entitled to 28 days holiday (nick's 5.6 weeks) per year pro-rated for shorter contracts. 28 days includes bank holidays, so if they do not work bank holidays that is your first 8 days of holidays in the year.

So somebody on a six month contract would be entitled to 14 days holiday, any holiday entitlement not utilised during the contract should be paid at the end of the contract.

As an employer you are entitled to dictate when the employee takes holiday.

Visa status is irrelevant to holiday entitlement.

dreamteamgirl - you as the employer can decide that Bank/Public Holidays are part of the entitlement. Those days combined with the 4 weeks you are giving will get you very close to the 5.6 weeks entitlement. This is assuming the au-pair is working Mon-Fri. You au-pair may well ask for a day or a few days off in addition - so if you decide to allow those days, then you will be over the Minimum Entitlement.

Direct.gov.uk : Time Off and Holidays is useful to read as a basic guide to calculating holiday entitlement. It also has a formula to help with working out an accumulation system, if you wanted the au-pair to build up holiday entitlement over a period of time. The ACAS Guide to Holidays also contains more info about accrual systems.

What DIOM and Nannynick said - We do 28 days including bank hols and I give them the choice of taking time off when they want to or having their holiday paid at the end of their stay.

And I don't think you'll find a .gov site that says 'you must treat an au pair as an employee as regards to holiday etc' but you are also unlikely to find a .gov site which says 'an au pair is Not an employee'.

Thabnsk Nick and DIOM, I think i need tog ive the agency I recruited through a call to clarify excactly what I should do interms of notice etc- after all this must be part of what I am paying them for!!

Thank you ever so much for all the advice tho- I so want to get this right and be fair to both of us

All great points, thanks.

I have researched this topic and spoken to ACAS and other agencies. I have published what I found at www.universalaupairs.com/family/about_au_pairs__nannies.html, which is freely accessible to all visitors.

I found that many au pair agencies gave conflicting advice, and that there is lots of confusion about what the rules are.

"I have researched this topic and spoken to ACAS and other agencies." and judging by the fairly large update to the website - lurked on here a bit too.

Happy to help.

I phoned my agency this week, and asked 'out of interest' and was told that it might be nice to offer her 2 weeks if she was staying for a year, but that I was under no obligation to. Now assuming the au pair has been told same- she is going to be chuffed isnt she?

To be fair, they are a fiarly rubbish agency tho

Oh and UniversalAuPairs, thanks for all the updates to your site (however sourced LOL) They are so useful!!

Together with the info from here I am slowly getting there

HERE IS THE LEGAL POSITION. Copied and pasted from a post I did a while back...

I was 100% under the impression that au pairs were not defined as workers under employment law, and indeed this was the case until January 24th of last year, when European Court of Justice over-ruled the UK Secretary of State on precisely this point.

The position now is that National Minumum Wage and Working hours directive continue to exclude au pairs from legislation (under specific exemptions given for people who work in the home as part of the family), but that all other aspects of employee legislation do apply (including paid holiday). Even though Sec of State thought they didn't (so at least I was in good company)

For those who get excited by these things (ie me: sad, I know) here is the legal summary of the ruling.

dtg - I have often wondered how agencies justify the fees, now given that a lot of them are handing out wrong information I would have though it is even harder to justify the fees.

So in summary, they'e not entitled to sick pay, but they do have to have 28 days hol/ year minimum, (or pro-rated no matter if they only stay 3 months?)

What do you all do for the mandatory statement of a disciplinary, dismissal and grievance procedures?

THey are not entitled to Statutory Sick Pay (unless they earn more then £95 per week and the employer has fulfilled their legal obligation to register as an employer with HMRC) what you chose to pay in terms of sick pay is down to contractural agreement.

I have a list of examples of gross misconduct instant dismissal matters (a combination of various peoples suggestions on here - thank you) and an agreement to talk about all other issues.

DIOM - I am writing my first proper contract. Do you mind sharing your gross misconduct list?

At the moment basically mine says:
The contractual notice period of 1 week will not apply and the au pair will be asked to leave immediately if:
either of our children are put in danger, put at risk or are neglected [then there's a footnote that says we don't expect the kids not to fall over but the au pair needs to be aware of road safety, sharp knives, hot drinks, open windows etc etc].
The au pair is found to be dishonest
there is serious misconduct [left vague]
the au pair is found to be a smoker, regardless of whether this is in the house and garden or elsewhere.
The au pair does not adhere to any item in the Au Pair Undertaking below. [mostly no drugs or drunkenness]