Au Pair Placements - is an au pair an employee or participating in a cultural exchange

[Treeesa]

Thread continued from Time to go from nanny to au pair that we seem to have hijacked.

nannynick We've had au pairs from the Czech Republic before and when we called the border & immigration department to register them for the worker registration scheme (necessary for employees from the 2004 new A8 countries) we were told we didn't need to bother as au pair work/placements are not considered employment.

mranchovy If you read the bottom of this page definition of au pair by European Commission then it is quite clear "The committee wants to stress that an au pair is not an employee and therefore not governed by employment legislation."

Just above this it also stresses "Definitions defined by ECAPS are based on the existing European Agreement on Au Pair Placement from 1968 (Ets 068), however updated and detailed to modern standards." So has incorporated the changes made to include male au pairs and other changes that have been made.

Your pointing out of the word 'employment' in document BR3 is another example of 2+2=5 to pick out words to extrapolate an unfounded point. The word employment is often used as a general term. It and 'employed' can be used in different contexts - in some cases inanimate objects can be employed to complete a task as obviously it means 'put to use'.

This UK government website states that living with a family as an au pair is not considered an employment.

British Embassy advice for au pairs from the Czech Republic advising if they need to register under the Worker Registration Scheme.

AU-PAIRS

• What about au pairs?

Those who come to the UK to take an au pair position as a means to learn the English language and to enjoy a cultural experience are not required to register under the scheme.
This type of arrangement where an au pair lives as a member of the host family, helping around the home in return for an allowance would not be considered employment for the purposes of the Worker Registration Scheme.

• What will happen if au pairs are already in the UK?

Those au pairs already in the UK who wish to continue current placements without changing their working arrangements do not need to register, providing they do not take up additional employment. However, should they choose to alter their au pair arrangement and enter into a more formal employment arrangement with the host family, e.g. by increasing their hours, duties or pay, then they will need to register under the scheme.

This is what I said on the other thread. Some families choose to extend the 'au pairs' arrangements to beyond what an au pair should be doing and so enter into a formal employment contract as the person can't really be seen to be working as an au pair. It is beyond that categorised as an au pair placement by all au pair bodies, the council of Europe and our own government.

I don't think there is anything wrong in having a good worded agreement between the family and au pair. It is always better to lay down the responsibilities and benefits that there are. I also think that au pairs who are recruited straight from gumtree or au pair world are better off having an employment contract because they don't have an agency to support them if the family are asking them to do work which hasn't been agreed to for instance. At least they can go to an employment tribunal to fight unfair dismissal in the event they are ill too often, talk too much, too dull or whatever else us families throw at them..!

ECAPS is not the European Commission. It appears to be a lobbying body made up of national trade associations, the UK representative is not a politician or a civil servant but the owner of smart au pairs. So there is an agenda they are pushing, and as we know agencies have been know to give out the wrong advice.

Futher the Czech thing states "not be considered employment for the purposes of the Worker Registration Scheme." i.e. for the WRS only, so you can't extrapolate that into employment law.

Finally this has been tested in the European Court of Justice (somebody else will be along to cite the case in a minute). The government (in the shape of the Home Office) used all the arguments you are using above. They lost. The court defined an au pair as a "worker" slightly different to an employee but with most of the same basic rights.

As far as I am concerned an au pair is an employee.

Sorry hadn't read all of the previous thread when posted the first response.

So to expand further: the reason the Turkish case applies is that in order to be entitled to the rights they were claiming they had to pass threee tests. One of which was to prove that they were "workers" part of the governments defence was that as au pairs they were not workers, it was found by the court that they had passed all three tests, therefore au pairs were workers. 2+2=4.

DadInsteadofMum You accuse me of extrapolating when all I did was directly quote from a British Government web site. The British Embassy web site says not to be considered employment I've not extrapolated I just quoted...

I am aware that au pairs have been defined as workers by the European definition. The Coucil of Europe acknowledges that au pairs have a unique status though that is neither worker or student. They have attributes of both.

You and mranchovy have used specific parts and paraphrased this Turkish court case to build or support a theory that you constantly push that au pairs are employees and that au pair status doesn't exist any more.

You say "as we know au pair agencies give out bad advice" - but you have previously admitted that you've never used an au pair agency because you don't feel they justify their charges.

The au pair programme transcends national boundaries. It is unfair to say that the owner of Smart Au Pairs is pushing an agenda. She has been appointed to that body by the UK association of au pair agencies. The UK government recognise and liaises with the British Association of Au Pair Agencies and refers people to them if they need information about the au pair programme in this country - see advice from UK Border agency to contact BAPAA

But you admit then that a pronouncement by ECAPS is not the definition of the European commission?

And that as UK is not a signatory to the original 1968 agreement and definition of cultural exchange derived from that document is not to UK employment status.

And that the fact that APs are not required to register under WRS does not impact the employment status under immigration law.

There are also changes in Immigration law. No au-pair immigration category anymore, so have to enter under a different category - Youth Mobility Scheme, EEA national.

nannynick as we already discussed a few months ago, au pair category is still recognised by the border and immigration agency both for A2 nationals, for A8 nationals (advising they don't need to register for the WRS) and for the Youth Mobility Scheme - advising them to contact the British Au Pair Association for au pair placements.

DadInsteadofMum A defintion by ECAPS is not from the European Commission or the Council of Europe. The advisory body of the committee works with the council of Europe, the European Commission and our national governments. It seems to have the support of these bodies to achieve what it is doing.

One seat only is available from each European country, so it is not Smart Au Pairs pushing their own agenda..

Do you admit that you are trying to discredit a European body set up to ensure the au pair programme is managed effectively, with good quality standards across the European region. Do you admit that you constantly discredit au pair agencies in this country saying that they give poor advice. When in fact the advice is also coming from the council of Europe and other established bodies.

Will you admit that the advice you put forward is your own opinion and doesn't come from any factual source. The hypothesis of 'all au pairs are workers thus all au pairs are employees' is credible but then all government corrspondence talking about au pairs state they have a special situation, are neither worker or student, are not considered employees or otherwise excludes them as being the same as employees.

The only other source you give is from Universal Au Pairs.

Regarding you asking me to admit the UK is not a signatory to the 1968 agreement...

On one hand you are using law from a European assembly that over turned the UK home office to build your argument that an au pair is an employee.

Then you choose to disregard a European assembly and their definition of what an au pair is to suit your argument. You can't have it both ways.

What you push in terms of all au pairs should have a contract of employment because they are employees is not so different to what the CoE, ECAPS and BAPAA are tring to achieve. The advice by CoE is that au pairs should have a legally binding contract with their employers, so the intent is the same. It's just they will continue to enjoy a special status that will hopefully be regulated more, but not recognised under standard employment law.

My agency gave me a stack of information at Christmas which I have just been going through and it has a lot of information about the drive to establish a better regulated au pair industry across Europe.

Further to the Council of Europe and its 1969 declaration, there has been much concern over domestic workers and au pair placements. There have been terrible cases of slavery and this resulted in the parliamentar assembly of the council of Europe issuing a declaration denouncing it and committing to establishing various actions to eliminate this from happening. This is one of the reason that ECAPS has been created to try to establish a common set of good practices and common standards for the au pair programme in Europe.

Council of Europe 2004 Recommendation 1663

Among the actions it calls for from national and European government is...

Quoting directly..

iii. as concerns au pair placement:

a. issue guidelines in the form of a Committee of Ministers? recommendation to member states, which would ensure that the distinctive status of au pairs (neither students nor workers) is recognised and safeguarded, their working conditions and social cover are fixed and that the au pair industry is appropriately regulated at national and international level;

b. recommend government regulation of the au pair placement industry, through the creation of a system of accreditation, by virtue of which agencies that commit themselves to certain minimum standards ? such as charging reasonable fees, ensuring au pairs enter into a legally binding contract with their employers which clearly states rights, responsibilities and duties and providing emergency help in cases of difficulty ? would see visa applications put forward on their behalf validated automatically. Accredited agencies should also be committed to doing background checks on both the prospective au pair and the prospective host family to ensure that they do not have criminal convictions, for example for sexual or child abuse;

c. ensure regular monitoring by appropriate authorities of the agencies accredited under the ?accreditation? system referred to in sub-paragraph b above;

Treeesa I do think you are putting words in to my mouth.

I have never quoted Univeral Au Pairs, in fact in the past I have complained that most of what they post was changed recently based on them reading various threads on here, up until that point it had been very misleading.

The ECJ is not a European Assembly, nor have I ignored a European Assembly. ECAPS is nto part of the European Commission, it is a lobbying body. I don't offer an opinion on whether it is a good or bad lobbying body merely point out that its pronouncements can not be taken as law as was implied by you linking to ECAPS by saying "definition of au pair provided by European Commission".

I thoroughly agree with everything you see about exploitation and everything in the 1663 link you provide; in fact that is my whole point without employee/worker (and the fifference is semantics) au pairs are wide open to exploitation.

For example this from the BAPAA website: "Q As an au pair, do I get paid holiday? If so, how many weeks
A You will get 2 weeks paid holiday per year." Why only two weeks? Why not the four weeks that every employee is entitled to? Were I being overly cynical (and usually I am not) I would suggest that if it was widely pushed that APs were entitled to 4 weeks (28 days if you include the bank holidays) hen it would be reduce their attractiveness over other forms of childcare reducing business for BAPAA's members. I regard not giving somebody their full holiday entitlement as a form of (albeit mild) exploitation.

I have not said smart au pairs are pushing their own agenda - I said that ECAPS was a lobbying oprganisation and evidenced this by pointing out that the UK was represented by an au pair agency rather than a politician or a civil servant.

I would not agree that I "constantly discredit au pair agencies in this country saying that they give poor advice" I have said that many give out incorrect advice and you can take two minutes to google half a dozen doing just that, yes you can google just as many (if not more) that get it right but if you are a new employer how are you supposed to know which is right?

I quote two reasons for not using an agency one is the cost and the second is the bad info they hand out, quite a few are not yet up to speed on Youth Mobility visas for example (neither is au pair world but I would never use that as a source of advice).

Despite this beciming a ding dong battle between the two of us I think we are agreed on most things:

• au pairs need protection from exploitation
• a proper contract is a good way of doing this
• the au pair agency industry needs better regulation

My main problem is that as soon as you say "Cultural Exchange" some people (and please don't think I mean you, from your posts on other threads I know I don't mean you) see this as an excuse for patronising behaviour along the lines of we are doing her a favour really by having her here (Jeremy Hardy parodies this attitude very well in some of his shows) and that is the road to expolitation.

However, my argument is that a lot of that protection is already there if people acknowledge that au pairs are employees.

The other point to raise here is some people think that au pairs shouldn't get paid if they're not working but if it's a cultural exchanged and what they're getting isn't a salary but pocket money then surely they should get that regardless of whether they work or not? Money in return for doing work is called a wage, which is what employees get.

I am about to send letters to ECAPS, the IAPA, ACAS, the CAB, HMRC and the UKBA today asking for their points of view on the issue. I suspect they will all say different things relating to their main area of expertise but my list of questions is fairly exhaustive. Before I send them would anyone like to suggest any questions or issues I may not have addressed?

Finally the European Court is a body convened as part of the EU's legal framework. The UK is a member state of the EU and as such the European Court has jurdistiction on matters of European law such as the free movement of goods, capital and works etc. The Council of Europe and its treaties are non-binding. If you don't sign them you don't have to enforce them. In that respect it is very like the UN and therefore completely different to the EU.

What questions are you going to ask frakkin?

I would go with:

Employments status?

If not employee/worker then what legal protection/rights are they entitled to? Specifically around dismissal, holiday pay and sick pay (being the ones that come up one here most often)

Does the ECJ case prove anything around this?
and why (not)?

Write to two different people at each body and see if you can even get consistent answers from each, my bet would be that UKBA and HMRC would be the worst offenders on that one.

Why not add the Home Office (immigation) DCSF (childcare regulations) and DWP (employment) to your list and see if government can be consistent?

And if you do write to government departments I think it is also worth pickign up the 1663 point that Treeesa makes and ask what they are doing about that.

Any ideas on how I can get names to write to people? I like the suggestions, am adding them to my list and have CATed you about the questions, DIOM.

Can I add the Better Regulation Executive (part of the Department for Business Information and Skills) which is responsible for regulating au pair agencies?

Questions:

Do you consider that au pairs in the UK benefit from the provisions of the Working Time Regulations 1998 (to the extent that domestic staff are not exempted from specific Regulations by Regulation 19)?

Do you consider that au pairs in the UK benefit from the provisions of the Employment Act 2002, in particular the right to receive a Written Statement of Employment Particulars?

May be more, gotta run for a bit

Thats for the UK organisations, for the international ones substitute Working Time Directive (93/104/EC) and Proof of Employment Relationship Directive (91/533/EEC).

DIoM I've been working as my brief time off came to an end yesterday just as we get to the Easter weekend and four more nights to get through.

I don't want to prolong this debate by discussing whether your put down of au pair agencies is constant, regular, occasional or whatever but I think you know what I mean.

Also whatever you say, I feel you made an implication that was unfair and may be regarded as discrediting "the UK representative is not a politician or a civil servant but the owner of smart au pairs. So there is an agenda they are pushing, and as we know agencies have been know to give out the wrong advice."

I apologise if it wasn't you that has brought up Universal Au Pairs before. Every time this issue gets discussed it seems the same posters are all onto it like a wolf pack! so I was guilty of using the 'royal you'.. I've said before on here - sometimes you do feel ganged up on when all you are trying to do is post something that others have a different opinion on. As you said on this thread earlier "(somebody else will be along to cite the case in a minute)" cue mranchovy or frakkinaround/frakkinnuts/frakkinpannikin/frakkinaroundthechristmastree etc.

Let me remind you that prior to December when I was sharing the information about age restrictions for au pairs, and that the au pair category is still recognised by border & immigration. The information being put out by yourself and other regulars, who frequently post on the subject - was misinformed. I can find a number of occasions that misleading or incorrect advice was given by regular posters on here (or at least in my opinion incorrect - I have no authority either on here). That doesn't make people wrong for trying to help others - but I believe people need to be careful about who they knock, and the suggestion that the advice on here is better than you get elsewhere from associations like BAPAA or others who represent the industry is wrong.

I recognise that generally people on here post to help and support each other, but when a group insists on ignoring the advice that is being given out by a respected association, then it is misleading. People in this country who have questions about au pairs should reference BAPAA as they are the voice of the industry. It is dangerous for people on here to give the impression to others that they are speaking with authority - but I know people like that about message boards.

The information on the BAPAA web site is as it is because that is what the current advice is. It is also supported by the ECAPS web site. I believe (and I may be wrong here) that in reality up to now an au pair doesn't need to be given any holiday, but the recommendation is pushed that 2 weeks is given as a minimum but more can be given.

To add some value to this debate then it is worth reading a lengthier discourse in an explanatory memorandum on what actions were being proposed at least in 2004 document Doc. 10144 It does seem that the industry is slowly moving towards some of the recommendations made.

It would seem that when comparing this advice with the 1969 treaty, one of the issues was that of provision of social care. As au pairs fell under many national thresholds for qualification and payment towards national insurance, they fell outside of its protection and thus didn't qualify for social benefits etc. Germany acted on this and insisted on the family picking up the additional costs of providing health and repatriation cover.

Since ECAPS has been set up in the last few years it seems like it's become an adopted recommendation too - recommending families to shoulder the burden of providing au pairs with a comprehensive insurance provision, which can only make sense. The problem is that this can easily be introduced by regulation of au pair agencies (and should be), but the fact that people are encouraged to use the internet to source au pairs, means this will continue to be a problem.

You sound like a nice placement for au pairs to go to, but my belief is that
If you truly have the best interests of au pairs AND families at heart, then you should promote the use of au pair agencies (good ones) to help prevent rogue au pairs being given the opportunity in the first place to look after children, or being put in positions where they shouldn't be expected to cope, and provide a check on families who abuse or take advantage of au pairs and/or get rid of them and make them homeless without a thought for them.

I think families should have to register anyone living/working as an au pair and without the registration then face a hefty fine as being similar to employing someone illegally. There does need to be a database and registration system.. How do you try to prevent a Fred and Rose West situation again...

One more piece of information I was sent this morning from my very helpful au pair agency - thanks Jay if you are now reading all of this..

Decent work for domestic workers - The Au Pair Exception

This is a very recent report from the International Labour Office examining domestic workers and a move towards better employment rights. There is a section in here concerning au pair placements. The recommendation is for "the ILO's constituents may wish to consider ?au pairs? as both workers and young people on a cultural exchange, and to regulate their working conditions appropriately." So not anything revolutionary compared to anything else from the council of Europe that we've already seen.

In the table at the back of the report it provides a list of what countries include domestic workers under standards governing working conditions, and in the UK's case it give a a mark against "Implicitly included in
standards governing working conditions" rather than explicitly included, excluded or giving any specific national standards covering domestic workers. Many other countries seem to have explicit conditions and standards defined for domestic workers.

The sad thing seems to be that the UK organisations did not seem to provide many if any response to the questionnaire. So frakkin I doubt whether you will get much joy from certain government departments in your survey. I imagine if they don't provide response to the ILO then they won't to an email or letter from a private individual.

frakkin... some lists of names. Not sure how helpful they are though, as they tend to be MPs who will change following the General Election.

Her Majesty?s Government

Government websites tend to have a Contact Us facility. Alas it doesn't seem to be able to be used to contact an individual person... but will get through to the Ministerial Contact Unit (or whatever section of the Department is dealing with enquiries). It can take several weeks for them to reply.

Yes Treeesa, that's exactly what everyone has been saying all along - that it isn't written down explicity that in the UK au pairs are treated as workers but that is implicitly the case.

I am sorry if we have confused you by quoting from case law that supports this implication, but we were only trying to help.

Incidentally that same report discusses (p. 34) the fact that all of the Council of Europe stuff including the bit about 'distinctive status, neither students nor workers' was emphatically rejected by the Committee of Ministers in 2005 (as the 1968/9 report had been before) and so this has never had any legal status in Europe.

So are we all now agreed that in the UK au pairs enjoy the protection afforded to workers generally?

Yes, I feel they have worker status but don't have NMW protection due to be live-in.

Parents who use au-pairs are best advised in my view to presume that the au-pair is an employee and should get the usual employment rights - such as getting a written statement/contract within 2 months of starting the job.

Why would parents who have an au-pair not want that au-pair to have employment rights?
Is it due to the dismissal process?

At this stage I'll take an answer from anyone! I'm also sending it to several contacts in the legal field my father passed on including professors in university law departments and solicitors so they might be more inclined to comment.

We are only human, we're doing our best to help people avoid unfortunate situations where au pairs may have a case for breach of rights. Sometimes we miss things like the BR3 form - when the UKBA puts a notice on their website I tend to believe them - but when proved wrong we do amend what we say (although Bulgarians and Romanians don't need an au pair visa specifically to be an au pair, there are other legal routes). Overall given that an au pair is no longer legally given special status we now take the view they're an employee. Seeing as the status 'au pair' generally doesn't exist any more what have they become? The answer is something akin to a foreign mothers help or nanny - a live in domestic childcarer - and if mothers helps and nannies are definitely covered then au pairs are too. There is no line in the sand any more. In my letter I ask at what point in terms of hours, pay, length of service and duties an au pair stops being an au pair. I hope I will get an answer!

And treeesa feel free to just call me frakkin, or frak. That's the bit that stays the same!

mranchovy Happy Easter to you and everyone else.. I have a 15 minute gap before the roast comes out of the oven which I'm looking forward to for my breakfast..!

In my opinion, your last reply to me was either made hastily or was an example of taking information out of context and twisting it to suit.

Please read my last post again regarding the report by the ILO. In my first paragraph I was talking about au pairs. In the second paragraph I mentioned the table at the back concerning general domestic workers. I was not implying this table at the back was concerning au pairs. The report as a whole deals with all types of domestic workers - domestic servants and other staff that people employ. The special box outlining au pairs was given the heading The Au Pair Exception which highlights that the ILO regard au pairs as a stand-alone quirk.

I think you also need to read page 34 again. I can't find where any committee of ministers emphatically rejected anything. Please can you shed light on your (in my opinion misleading) comment. It never says 'emphatically rejected' at all. It says the committee expresssed its indignation over the phenomena addressed in the recommendation - or put another way they were angry by the unjust events described in the report.

FInally I would appreciate if you would be less condescending in your claim to have confused me by quoting from case law.

nannynick I think most decent families want their au pair to have decent conditions - it is in our best interests. Our au pair has 28 days holiday per year and I would like to think we would look after her whether she is classified as an au pair, a worker, an employee or what ever.

The problem is there are a few families who wouldn't want their au pair to have the same sort of rights.

By making au pairs employees and having everyone complete all the declarations, P60s, P45s and whatever else then you are potentially going to make life more complicated for the people who don't abuse the system, and the people who mistreat their au pairs will carry on anyway without bothering.

It would be far better for a standard au pair agreement that the government should push, but how can they implement that easily?

Where do you stop with the arrangements.. If someone has a step-child who helps out in the house for pocket money, foster children earning pocket money?