It's not working out with the AP

[ClaraZ]

Our au pair has been with us for four weeks and it's just not working. She has sole charge of a four-year-old for three days a week while I am at work. I don't feel she has bonded with him at all. She seems to resent doing any housework and does it badly. I don't think she can cook, although she tells me she can. She hardly communicates with us at all. I am going to give her two weeks' notice, but I'm not proposing to pay her for those two weeks because I won't ask her to do any work. Has anyone else had to sack their au pair? I'm really not looking forward to it, but I think it has to be done.

Youwere not misled by your agency. They were correct that you do not have an employer-employee relationship.

An au pair is not an employee and doesn't fall under employment law.

But an au pair should not be providing more than 5 - 6 hours of childcare or domestic work per day so in reality if you are looking for sole care all day then maybe you could employ a Mother's Help instead...?

An au pair is an employee I'm afraid Treeesa. The au pair visa category no longer exists, an "au pair" is just a live-in domestic employee. I believe there was a court ruling last year confirming this.

Surely someone having sole charge of a 4 yr old would be a nanny rather than an au pair or mother's help?

The au pair visa category has nothing to do with someone living au pair with a family. They are two completely different things..

A live-in domestic employee should be paid the minimum wage for one thing minus the cost of accommodation allowance - unless the person is living 'au pair' - as a member of the family - joining in with family activities and sharing household chores.

There's nothing stopping an au pair having sole charge. The definitions of each job title aren't really that defined.

Nanny - lives in or out, takes care of children and nursery duties

Au Pair - lives in, usually foreign, does about 25-30 hours of childcare and housework

Mother's Help - lives in or out, does childcare and housework under supervision of a parent

Treeesa - live-in employees are exempt from the minimum wage. You can't decide someone isn't an employee if they are "part of the family" unless they are actually related to you!

An au pair can have sole charge of a 4 year old MollieO and is quite common. The differentiating factor about a true au pair is that they should work a maximum of 5 - 6 hours each day.

Live-in employees are exempt from the minimum wage if they join in with family activities and share household chores i.e. living as if they were a member of teh family.

If someone is living as a 'domestic' and is being asked to work say 40 hours per week for instance, then the family run the risk that the person could be categorised just as any other employee that is provided accommodation as a benefit of doing their job (i.e. hotel chamber maid with accommodation).. They may then be subject to the NMW.

Yes, I agree au pairs/nannies etc living as part of the family are exempt from NMW - still employees though.

You might find this quite useful Treesa www.universalaupairs.com/family/about_au_pairs__nannies.html

"We contacted ACAS in March 2008 and asked whether an au pair is considered an employee for employment law purposes, or whether an au pair falls in to some 'cultural exchange' status. The answer was definitive - an au pair is an employee and is entitled to rights such as a written statement and holidays."

Well we will have to disagree..! :-)

I spoke about this extensively with my agency who are very helpful. I also asked them about the court ruling as I had been debating this on another thread - we are getting someone who was turning 28 years old who if we invited her too late wouldn't qualify under the (still existing) au pair age restriction rules..

The court ruling by the way was for the purposes of assessing if some Turkish workers had accrued rights to stay working in the UK based on an agreement made between UK and Turkey many years ago.. The ruling did not say an au pair is not an employee - but the au pair in question was classified as a worker for the purposes of assessing whether the person had accrued certain priviledges based on things specified in this earlier agreement.

What are the au pair age restriction rules? Do you mean for someone requiring a youth mobility visa?

No not those (although there are age restriction rules for the Youth Mobilit scheme) - there are still age restriction rules in place for Bulgarian and Romanian au pairs..

That's interesting - I thought Romanians and Bulgarians just needed an Accession Worker Card.

But doesn't it depend on where the au-pair is from... thought we established that earlier. Those from Bulgaria and Romania need to complete the BR3 form thingy, thus are still au-pairs (restricted working), whereas those from other countries in the EEA are not restricted in working hours.

All so confusing.

They do but they can only get one issued for au pair status if the are between 17 and 27 years old.

nannynick - yes anyone from any EU country can work extended hours, but they do run the risk of not being recognised as having au pair status.

Is there any legal basis for "au pair status" as a special category?

What is all this talk of the "au pair status". I thought the au pair visa was dead and gone.

And can someone define what the government means by "the household?s work and leisure activities". Does this mean I should get my nanny out of bed on Saturday morning to come to the gym with us so she'll be exempt from minimum wage (this is obviously a rhetorical question because I'm pretty sure she'd resign if I did this).

From directgov:
"If you are not a member of your employer?s family but you live in their home and share in the household?s work and leisure activities, for example if you are an au pair, you are not entitled to the NMW."

It means au pair..

Au pair means on par or on equal terms.. meaning that they are living in the same way as if they are a member of your own family.

About your rhetorical question then as your own children get older then what they participate in will change.. A younger child would do very little chores but would do a lot of visiting with the family to days out, grandparents etc. An older child of say 16 or 17 would hopefully be doing a lot more round a house but probably be going out less frequently and more begrudgingly on family days out!! When they are older still I'm sure most people aged 18 - 25 may not be interested to get up on a Saturday morning to go to the gym - though some might..

I am aware of the literal translation of "au pair" but I thought the legal status / visa was a thing of the past. Are you saying that young people still enter the UK on an "au pair" status/visa?

Legal status and immigration status are two different things though. People have been working as au pairs well before any government introduced a category of visa to cater for them.. There are still immigration rules on au pairs from specific countries mentioned above.

My agency sent me a document that has a lot of information in it but when I try to open it seems to freeze my computer even though it opened fine last week..

Au pair visa does not exist there is a minor exemption for Romanians/Bulgarians so that they don't have to comply with full worker registration hoops that is all.

Au pairs have proven (with court precedent established) to be workers with full employee rights the only difference between worker and e,ployees is that workers don't get paid maternity leave!

Sorry Treesa you are wrong and we keep proving it to you so not sure why you don't believe us, ClaraZ this is why I don't use an agency I don't believe they can justify the fees and they give out too much incorrect information.

Looks like you were up playing Santa judging by the time on your email DadinsteadofMum..!

I hope you had a nice Christmas with your kids.

I'm not sure why you are saying I am wrong (or what you are saying I am wrong about).

I have been involved in only one or two discussions with you or other people on these discussion boards about au pairs having age restrictions and their status.

In the other discussion about the 31 year old Romanian woman you had said there were no longer age restrictions or that they were irrelavant now. I merely said that Romanian's could not come here under the au pair rukes if they were 28 or over. You told me I was wrong or my agency was wrong - but I showed you the appropriate guidance from the Border and Immigration agency..

I have never said the au pair visa still exists. I understand the au pair visa scheme was all rolled up into the Youth Mobility scheme last year (and again there are age restrictions on that scheme too - people wanting to come and work as au pairs from these nations have to be between 18 & 30). So that makes 6 countries where there is an age restriction just to come into the country in order to start working as an au pair.

I said that legal status was different to immigration status and I stand by that. People who live and work 'au pair' as a member of the family can be classified as having au pair status. If you are not living as a family member or work excessive hours then yes you are a live-in domestic employee and not an au pair.

By contrast some information I have read on these discussions have been incorrect - people saying that au pairs don't exist anymore.. Maybe people's own interpretation or ignorance of the rules.

Who do I believe though - I believe agencies because that is their business - they are dealing with these things week in - week out. Using an analogy it's similar to someone going on a one day first aid course and then advising about nursing practices for someone requiring complex medical care.

All the information provided from my agency has been correct and all backed up by other information from government web sites. I called another agency I use a couple of weeks ago regarding the girl from Romania who was just about to turn 28 and given similar information.

When I can get my computer to open this pdf document my agency sent me I will try to post the relevant parts.

treesa, i have learned that trying to get a message across on this board is sometimes a neverending story. so i just gave up on certain subjects.
hope the process of getting an ap is going well.