Aupair, - tax rules if has more than one job?

[willowlady]

The Romanain girl of 31 who wants to au pair for us has been in the country 3 years and is 31. Im not sure firstly how long she is allowed to stay, but she says she is as Romania in EU. I have checked websites but they arent easy to understand.
However, not only that, but she wants to do other jobs during day (I dont mind this as dont use her in day) like ironing, cleaning etc but would mean she earns at least #180-200 a week with all these jobs. Shouldn't she be paying some kind of tax earning this money per week, tax free? Anyone know the answer I would be so grateful to save this minefield on the internet!
Thanks
for reading this

If they can only come to the UK as an au-pair under 28, does that mean that once they are 28 they then have to leave? Or do they have to leave if the job finishes? Or can they stay indefinately as long as they are in the UK before their 28th Birthday?

I've just finished talking to them again but I didn't reallly get chance to find out everything as I was in a hurry.. I'n doing Christmas shopping today but I'm on my last day off before a run of nights so need to be back to sleep for a few hours this afternoon.

They told me not to worry as my situation would all work out but I couldn't quite grasp all they were saying. They specialise in Romanian au pairs so they definitely know all about what is allowable and what isn't. I'll xome back later if I get my head around it..

this is all very interesting! hope you'll have your fab new aupair coming soon.
i have to say i am really surprised about the age limit. or rather the fact it does not tell you until you start filling the forms and read the guidance for that. i find that a bit cheecky.

nick, i think they just need to apply before their 28th b-day. other countires have that too, ie germany or the us. /and i have found it on some romanian agency's website as well/

The employment/self-employment thing is down to HMRC who decide on a person's status. Not always very consistently!

APs are usually employed rather than self-employed as you tell them what to do. There is a link which will be on other threads on here about employed vs self-employed childcarers but I can't post it at the moment as stupid phone doesn't allow it.

The HMRC guidance on employment/self employment is here. You can see from that that it is inconceivable that an au pair could be properly treated as self-employed.

Au Pairs are not employed though. With all the discussion on here I spoke at length about this to my agency and was told that they are not employees. If they are live-in and working like an employee though (such as a nanny) then this is different to an au pair.

Treesa this time your agency is definitely wrong - this has been tested in the courts (see other threads or somebody else will be along with the link I can't find it) and au pairs were found to be employees with full employment rights including 28 days paid holiday a year, sick pay etc.

Yes, they are employees - I'll see if I can find the link.

summary of the court case here

Is there another page?

Where soes it say that au pairs are employees with full employment rights including 28 days paid holiday, sick pay and so on?

The court ruled that they were a 'worker'. Thus that then means that local state, so UK, employment legislation does apply.

Where does it say that UK employment legislation applies? Am I missing something?

It doesn't. But I don't think it needs to. I think that case was to do with determining status... if the EU court considered them to be a 'worker' or not.
As far as I understand it, for employment legislation not to apply, they needed to rule that they were not a worker.
All very confusing though. Anyone know lots about this and able to explain it?

Well I'm going to bed but I just had another discussion realting to it over our next au pair and I am sure that au pairs are not employees. It was all explained to me by my agency and it made total sense but I can't begin to try to explain it all at this time I am too tired..!

Tired at this time of the morning? Bad night was it?

"The Secretary of State appealed and the Court of Appeal sought from the Court of Justice of the European Communities a preliminary ruling on whether the applicants were ?workers? and ?duly registered as belonging to the labour force? of the United Kingdom, for the purposes of article 6(1) of Decision No 1/80."

This is the determining bit. They belong to the labour force therefore they are employed therefore they are protected under employment legislation.

And incidentally I was chatting with a lawyer specialising in immigration over dinner at the weekend and there is nothing stopping a Romanian over the age of 28 applying for an accession card to work as a childcarer - it just means the card is slightly less likely to be granted than if they were applying as an au pair but they would be able to work longer hours and for a wider range of families. So you can employ a Romanian over 28 as long as they have a card. If they come as an au pair though they wouldn't as far as the rules currently stand qualify under the 12 month rule to take on other employment so it's not suitable for Romanians wishing to settle permanently in the UK. All very interesting.

here for the difference between a worker and an employee (not much and in the case of an individual working exclusively under contract for one employer e.g. an au pair, none).

Along with the rights this attracts, the rights I have listed are those of a worker:

the National Minimum Wage;
working time limits, including rest breaks, paid holiday and limits on night work;
protection against unauthorised deductions from pay;
maternity, paternity and adoption pay (but not leave);
protection against less favourable treatment because of being part time ;
Statutory Sick Pay;
protection against less favourable treatment if you make a disclosure in the public interest (often called ?whistleblowing?); and
not be discriminated against unlawfully

The ones most impacting au pairs are of course the paid holiday!

To nannynick : I'm often tired in the mornings - was in a run of night shifts.

Well we've gone with our next Romanian au pair and we've had another conversation with the agency. I mentioned this subject and they told me it was a ruling over a specific case involving a number of Turkish people who were looking to renew their work permits and this would allow them to carry on working in this country. They spent ages explaining it but I have asked them to write it down for me..!

The ruling (has been linked to) was on a specific case but it applies in general terms being what's known as a test case. It sets a precedent for other 'au pairs' to be considered as workers and employment tribunals can use this precedent so if an au pair takes you to a tribunal, as someone on here was in danger of experiencing recently, you would be in a very unfortunate position if you hadn't treated the person in question as a worker.

So au pairs are "workers" and not "employees". It's all so convoluted, I'm beginning to wonder whether it's safe to have an au pair at all.

Probably best to treat them like you would expect to be treated if you were working in another country, staying in the home of your employer.

I don't think Employment law and Tax law is aligned, so it all gets rather confusing. Thus if you go with the worse case scenario, of them being considered as an employee, with all the usual employment rights (for someone whose accommodation is provided as part of their job) then it should be fine.

Problems seem to come when it comes to terminating the agreement. If you set out things clearly to start with, get them to agree and sign a contract in which you state their pay, working hours, notice period, holiday entitlement, plus specific duties, then they will know what they are agreeing to and you will be able to tell them when they are not meeting that agreement.

When it comes to au pairs they are 'workers' but unless you're a whizz at employment law most guidance is aimed at employees and if you treat them as an employee you can't go wrong. As DIOM points out there's no difference between an au pair and a worker for a single-employee business.