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'.

Confusing last sentence.. The last sentence was referring to the situation if the government wants all au pairs to be registered as employees. Where do you stop with the arrangements in a domestic household. After all 'au pair' is meant to be living as a member of the family.

Being an employee does not mean that tax forms have to be done. Employment law and Tax law are different. So would be fine for an au-pair to be an employee but not be paid enough for employer or employee NI or income tax to be necessary.

Tereeesa, in many of your posts you have confused the status of advisory bodies with those that have legal jurisdiction, and confused recommendations and proposals with law. I have no idea why this confusion has arisen, so I apologise that you found my suggestion that a particuar case contributed to it condescending.

I do feel that it is necessary to provide some clarifications around the points you make to ensure that this thread does not remain with inaccurate references.

First Wed 31-Mar-10 23:35:00 you quoted from a document which you stated was issued by the European Commission (which is the the law-making body for the European Community), but was in fact issued by the European Committee for Au Pair Standards, which is a trade body and has no official status in the UK or Europe.

.

In the same post you referenced the "existing European Agreement on Au Pair Placement from 1968". This Agreement was only ratified by Denmark, Spain, France, Italy, Luxemburg and Norway (Luxembourg has since denounced it) and therefore has no legal status in the UK or elsewhere in Europe.

.

Next Thu 01-Apr-10 00:56:57 you quote from a document which applies to Czech nationals working in the UK and says that working as an au pair "would not be considered employment for the purposes of the Worker Registration Scheme."

The WRS requires nationals of certain 'new' EEC states who wish to seek employment in the UK to register. This provision simply says that au pairs who are Czech nationals are not considered employees for the purposes of the scheme and therefore do not have to register. It does not limit au pairs rights in any way, nor does it suggest that they do not have the status of employees in any other context.

.

In the same post you say "At least [au pairs] can go to an employment tribunal...". Employment Tribunals in the UK only have jurisdication in disputes between employers and employees over employment rights so I am not sure what your argument is here?

.

In your post of Thu 01-Apr-10 12:51:01 you make the following points:

"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."

Again you refer to the recommendation of the Council of Europe which has no status in law. You also appear to be confused by the reference to the Payir case. I referred to this case because you asked to see where it is written down that au pairs are employees. Of course it isn't written down in any statute of English (or Scottish, or as noted here, even European) law that au pairs are employees, any more than it is written down that teachers, nursery workers or nannies are. However in the ruling in Payir, it is written down that being an au pair does not affect your status or rights compared with any other worker.

This was not a Turkish court case, it was a case in the English courts, with the UK Government as one of the parties, which was brought before the European Court of Justice, which has jurisdiction in the UK. It is an important case because it is the only time that this court has ruled in a case where one of the parties (the UK government) advanced the argument that, although au pairs are employees they have a special status which means that it is possible to give them different rights to other workers. The ECJ decided that that argument was wrong. Unfortunately, in typical legal fashion, the ECJ took over 2,000 words to say this and so it requires paraphrasing in this forum but if you feel that this paraphrasing was selective or unfair I will link again to the summary of the case including the judgement ('Reply of the Court').

.

In the same post you say that "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". To support this assertion you refer to a document which actually refers people to the BAAPA for 'Information on au pair opportunities in the UK', which is hardly the same thing.

.

I am sorry that I was confused by your post of Thu 01-Apr-10 12:51:01, I did not realise that you were no longer referring to au pairs.

I was wrong in my reading of the reference to the 'indignation' of the Council of Ministers in their reply to Recommendation 1663 of the Parliamentary Assembly as an 'emphatic rejection', however the Council did not adopt the recommendations regarding au pairs.

.

In your last post you refer to au pairs 'registering as employees'. Perhaps this is the source of all the confusion? Under English (and Scottish) law, you do not register as an employee. Nor does having a written contract make you an employee. What makes you an employee is the fact of undertaking work for an employer in exchange for payment. Perhaps the following guidance from ACAS helps explain the situation:

"A contract of employment is an agreement between employer and employee and is the basis of the employment relationship. A contract is made when an offer of employment is accepted. A number of rights and duties, enforceable through the courts, arise as soon as this happens.

Most employment contracts do not need to be in writing to be legally valid, but writing down the terms of the contract will cut down on disagreements later on. The Employment Rights Act 1996 requires employers to provide most employees with a written statement of the main terms within two calendar months of starting work."

Of course their are a number of situations where undertaking work for someone in exchange for payment does not make you an employee (principally where you are an employee of somebody else, where you are self-employed, or where a specific exception exists for example a husband cannot employ his wife to perform domestic duties), and from my point of view this whole discussion is about whether such an exception exists for au pairs in the UK.

To summarise my view of this, there are a number of documents which say 'au pairs have a special status, neither employee nor student', but none of these documents have any status under UK law, and the European Court of Justice has ruled that you cannot use the 'special status' argument to deprive an au pair of the rights and protection enjoyed by workers generally.

To avoid going round in any more circles over definitions and look at practical consequences, Tereeesa can I ask what you think is the difference between the rights and obligations that exist in an au pair/host family relationship and in an employee/employer relationship generally?

I have actually come to the view that now the cultural side of things has been rather undermined by the EU expansion and associated freedom of movement, we probably ought to move towards some sort of regulation along the lines of the US if someone wants to be considered an AP rather than purely a domestic employee, i.e. give it some special standing and offer support and protection for both families and au pairs. Perhaps some initial training for the APs might be a good idea (some of mine have been absolutely mental and really stormed through the family with their own agendas, upsetting us and the children in the process, for example). A bit of training for families might be useful as well, giving a reference point for how to conduct the relationship to best effect. And possibly regulate things like sick pay, holiday pay, grounds for instant dismissal and so on.

Interesting thought BoffinMum. Sick pay, holiday pay and dismissal rights are of course already covered by employment law, but some kind of additional regulation does seem attractive, and this was of course (part of) the recommendation of the Parliamentary Assembly of the Council of Europe linked to above (Recommendation 1663).

However there is a counter-agrument which was highlighted in Mr Gaburro's report to the Parliamentary Assembly which led to Recommendation 1663; the following is quoted verbatim from this report:

"The United States of America has an extremely well-regulated au pair sector, with detailed security checks, references and interviews before placements ? regulations the IAPA [the International Au Pair Association, a trade body comprising au pair agencies] would like to see emulated in Europe. However, even the US programme has been plagued with problems ? from au pairs crashing family cars to alleged child abuse (at least three children have died while in the care of au pairs in the USA since the start of the programme in 1986). In fact, in the USA, au pairs are expected to work up to 45 hours per week, and are thus at risk of being exploited as a ?cheap childcare option?: emulating the USA in this sector might thus not be the answer."

Treeesa, could you confirm whether you are employed by or otherwise associated with (other than as a client) any au pair agency?

Oh MrAnchovy... think I may have spotted the same thing as you... was it this?

"Theresa is a qualified registered general nurse and mother of three children. Nursing has meant early, late and night shifts, and Theresa has managed to juggle work and home life with the help of all of our au pairs. She can be found in the office a couple of days every week, and is always available to help with family visits.If we have a request for companion positions, it is usually Theresa who assesses personal care requirements."

I have problems with the US model, and indeed I hired an AP once who had spent a year on the AP in America scheme, and she was one of our worst offenders. No, I think a home-grown, EU-centred scheme would offer something more useful in terms of fitting in with modern families and young people.

I think I can envisage something like a two-week residential course, paid for by the AP (to weed out the non-serious and ensure a decent length of stay in the UK), introducing them to British life and culture, which would cover things like:

1. How to share a house with working people who aren't your parents or boyfriend.
2. Very basic cookery and food hygiene - school packed lunches, a simple pasta dish or two, a sponge cake for birthdays.
3. Child safety and hygiene (I deliberately did not say child protection there, by the way) - crossing the road with kids, bike helmet use, one or two simple discipline tricks.
4. Child car seat installation skills.
5. British habits and customs, such as typical working hours, meal habits, social niceties and faux pas.
6. Introduction to housekeeping - simple routines for cleaning children's rooms, basic laundry and ironing of children's clothes and school uniforms, etc.

Then APs could be in a better bargaining position workwise than unskilled domestic workers, and families would probably be prepared to pay a premium and/or offer them superior working conditions.

Well, it's an idea, anyway.

I think it is very unclear as to the status of an au pair. Maybe when there were au pair visas available the guidance was clearer. Now what?

I think most parents would want their au pair to have rights, obviously. But an au pair set up as traditionally defined doesn't really gel with that of an employee. They are meant to be part of the family. They often have poor English. They work limited hours. They get a lot of in-kind benefits - housing, bills, food.

Personally, I'd be happy to employ a part-time nanny who'd be happy to work typical au pair hours eg. do the school drop off and pick up. But I can tell you now, that most people want to work full days, not have a few hours free in the middle (which au pairs are happy to use for exploring or learning English.)

Seems to me au pairs fill a gap between the typical school day and a typical working parent's day. What a shame the government abolished the au pair visa sytem before waiting until all schools offered extended hours.

PS I think some very occasional child abuse incidents and car accidents are going to be unavoidable. You get this amongst some trained nannies and nursery workers (and as we all know, some children's parents as well). If you think about the total number of days' childcare being provided, and consider the number of negative incidents as a percentage of this, it is probably very small indeed.

Well put, Leila.

Of course the other disadvantage of the US system is that it costs au pair employers about £5,000 on top of what they pay the au pair. This is a fee that they pay to one of twelve accredited agencies and I suggest that this is probably the reason why agencies in the UK, Europe and elsewhere would like to see a similar system introduced.

mranchovy I am often very tired when replying to messages so I do make some mistakes. I have probably made a mistake in using the wrong terms for a particular body - i.e. calling them an assembly instead of something else. I still feel that you paraphrase or are selective in what you pick out in order to derive another inference.

European Committee or European Commission for au pair standards. Yes I did mis-quote but I don't think you can say that ECAPS is not an official body - doesn't it represent the au pair sector for Europe.

Although the council of Europe au pair agreement was not ratified in the UK, that doesn't make it a significant treaty. This was my point earlier that you were quoting a European Court ruling (which overturned a British ruling about the Turkish workers) but wouldn't accept the council of Europe definitions of what an au pair is (and still is - even though officially the treaty wasn'd ever agreed to by the UK). If a definition of an au pair was called for then I would imagine this definition (from the CoE treaty) would have to be used because there is no other definitions written down in UK law that we can use, save the definition still being used for Romanian and Bulgarian au pairs by the immigration authorities.

You have made the statement that Czech au pairs do are not considered employees for the purposes of the scheme.

Would you not agree that a similar point can be made when you examine the text of the ECJ ruling:

...cannot deprive him of the status of 'worker' and prevent him from being regarded as 'duly registered as belonging to the labour force' of that Member State within the meaning of Article 6(1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association

I do appreciate the Payir case was first a UK case that then went to the European court for a referral. I was simply referring to it as the Turkish court case to identify it - yes I should have called it the Payir case.

You said "However in the ruling in Payir, it is written down that being an au pair does not affect your status or rights compared with any other worker."

you also stated in a previous post when you were paraphrasing from the case "that does not take away the lawful character of the activity as work, and therefore an au pair has all the rights of any other worker."

I then asked you to point out the parts where the case says that an au pair has all the rights of any other worker, since the case was talking specifically about the Turkish au pair accruing the right to remain working in her au pair job with the same employer (using employer in a general sense here by the way before you quote me ;-) )

You subsequently explained your point "if someone goes to an Employment Tribunal (or the Court of Appeal, or the ECJ) and tries to deny an au pair some other right which is afforded to workers in the UK on the basis that they have some different status, the judgement should follow that precedent."

By this logic, the Turkish au pair would be able to go to the same court and say that workers in the UK have the right to work in any job in any industry therefore she should have the same right? Surely the ruling was made about her accruing the rights afforded her under article 6(1) rather than as a ruling about au pairs in general - I know your answer to this again will be to say that this has set a precedent etc but this was my point - the ruling did not say this.

You also made the point: In the same post you say "At least [au pairs] can go to an employment tribunal...". Employment Tribunals in the UK only have jurisdication in disputes between employers and employees over employment rights so I am not sure what your argument is here? You haven't taken the paragraph as a whole - My point here was that if an au pair was given an employment conract then it would be good in the cases where she hasn't come via an agency, because she then has a tribunal to go to and support her (on the basis that if she is not considered an employee she can't go to an employment tribunal).

Regarding the border and immigration agency referring people to BAPAA..
You say "information about the au pair programme in this country" is hardly the same thing as 'Information on au pair opportunities in the UK' - no it's not the same words but since you have paraphrased things yourself I don't think it's too far wide of the mark.

You also ask: "what you think is the difference between the rights and obligations that exist in an au pair/host family relationship and in an employee/employer relationship generally?"

That would take a long time to answer and so I'll leave that for another time.!

nannynick You said - Being an employee does not mean that tax forms have to be done.

I probably got this wrong in terms of who registers who. mranchovy pointed this out to I think.. I'm sorry. I meant registering as an employer although as you cab see I'm not sure how you go about doing it. I was talking about the different HMRC forms and declarations that must exist.

mranchovy employed by? It depends on your definition of employent! ha ha. No I'm not although I have referred to some au pair agencies here because I have got to know some of the people who work for them and appreciate some of the things they do. I am semi-serious about starting my own agency though.

I have lots of information from my current agency - some of which I have posted here.
I think I know a lot about Romanian au pairs though because we have employed (again in the general sense ;-) ) au pairs from this country for the last couple of years. In December I was talking with a girl who was about to reach her 28th birthday and we explored absolutely EVERY thing there is to do concerning Romanian rules. The girl was concerned that she was employed with a proper contract and wanted us to pay national insurance for her etc as she was on good benefits in her existing job. She actually was working in recruitment herself so was quite informed about contracts/insurance/benefits etc. We went through all the scenarios of trying to find out if we could register her with a NI number and pay contributions for her and all sorts. I also had a Romanian au pair who was a student and wanted to carry on studying and we went through all the enquiries with the border agency about registering her as a student or as an au pair enquiries.

BoffinMum Your suggestion sounds fantastic of a two-week residential course, paid for by the au pair... but unfortunately a two week residential course is probably going to cost the best part of £1,000. For au pairs from Romania this would represent at least 6 months salary if not more.

I do think something similar to the US model would be great although I think au pairs there seem to work extremly long hours in their roles. Without getting into the controversy of how the poor baby died, I think the Louise Woodward case highlighted that a young girl was given sole charge of an infant and I don't think she had what people on this board would see as formal training beforehand.

I will let others judge between paraphrasing and misrepresentation and will stick to the facts.

You didn't refer to the 'European Commission for au pair standards', you referred to the European Commission. Regardless of whether or not this was an innocent mistake the effect was to represent a statement made by a trade body set up by au pair agencies as a statement made by the legislative body of the European Union.

I didn't say that ECAPS is not an official body, I said it doesn't have an official status in the UK or Europe. The official status of the European Commission is established by the Treaty on European Union (formerly known as the Maastricht Treaty) which the UK has signed. What do you suggest establishes the status of the ECAPS in the UK or Europe?

I am not sure you have worded your comments about the Council of Europe au pair agreement correctly, but you appear to be intending to claim that a treaty that has not been signed by the UK has equal status to the ruling of a court with jurisdiction in the UK. I am afraid that I cannot agree with that.

Your next point demonstrates nicely the difference between paraphrasing and misrepresentation.

Omitting words that change the sense of a phrase like this "au pairs are not considered employees for the purposes of the scheme" is misrepresentation.

Omitting a whole section of text that does not contradict your point is paraphrasing.

Are you implying that I quoted the section of text you quoted with the words you emboldened missing? I did no such thing, I ommitted this text entirely precisely because of the limiting clause which meant that it could not be generalised. In fact the only time this part of the ruling has been quoted on Mumsnet was by Frakkin in December when the emboldened words were included!

Your logic on the rights a Turkish au pair in the UK may be able to claim as a result of the Payir case is flawed. Once again, the ruling in Payir established that someone legally engaged as an au pair in the UK has the same rights as they would if legally engaged in any other work, what it did not say was that a Turkish person working in the UK under Article 6(1) of Decision No 1/80 is entitled to do any job they want.

Changing 'information about au pair opportunities' to 'information about the au pair programme' is not paraphrasing - you have made the clause one word longer and changed its meaning to one which better supports your case. This is misrepresentation.

Hmmm, given my last paragraph I had better change the introduction to:

"I will try to stick to the facts and let others judge between paraphrasing and misrepresentation."

I have found that the authority of Payir was recognised in an Employment Appeal Tribunal in October 2009. This had nothing to do with Turkish nationals or au pairs, it concerned a volunteer and the Disability Discrimination Act.

Here is a relevant extract from the judgement:

"That case related to whether a Turkish au pair in the United Kingdom was a worker, and [Stanley Burton J] concluded (at paragraph 23 of his judgment) that there was a genuine employment relationship between an au pair and the family for whom she works: her work could not be regarded as "purely marginal and ancillary".

This removes any doubt that the judgement in Payir will be recognised in a wide context in a UK Employment Tribunal.

Just thought I would add something to the mix here.

In practical terms the difference between the statutory protection provided to a 'worker' and an employee is minimal. SO if we accept that Payir established au pairs as workers (which appears fairly clear in the judgement) then they are included as such in the vast majority of UK employment protection legislation - of the top of my head workers are included in the Working Time Regulations, National Minimum Wage Act and the Part-time Workers Regs 2000.

A definition of a worker can be found in ERA 1996 s.230 FYI.

But live-in workers/employees are exempt from some of those.

I don't understand why anyone wouldn't want to treat their au pair as an employee/worker? Give them proper holiday, don't deduct wages unfairly, have a contract that sets out expectations clearly on both sides - is it really that much more effort for an employer?

Yup Missus - That's what I said on the other thread. It's not that much effort to treat people properly no matter what the rules
and regulations say implicitly or explicitly.

Having been an au pair when younger myself, "oh but you're a member of the family!" generally seemed to be code for "please do extra work for no extra money"

Works both ways, the member of the family thing. For example,

"I have found a flight that is £10 cheaper on Ryanair to go home, could you drive 60 miles there and back to the airport at 4am so I can catch this cheaper flight, because I did not check there was any public transport at that time before booking".

"I have my entire family coming along with my boyfriend for a week - can they stay in your guest room? And eat your food? But not talk to you very much because they don't speak English."

"I have no money left and I have 60kg excess luggage to get back. Can you give me a load of extra money for doing absolutely nothing so I can afford to send my Primark collection back via courier?"

"I am sorry I shagged your brother, but you have to admit he was asking for it".

All of the above are common to the AP world but would be less tolerated in a normal job, methinks.