Getting a new au-pair - do you really need a contract?

[Koumak]

I have had 2 au-pairs but never actually had contract in the past.
Is it really necessary & what does it mean for me?
I mean is there £min or max (tax etc.), or redundancy or even maternity, I wouldve thought holidays and obviously duties?
Nowadays do they come with some sort of certificate?
Please talk me through it!

The contract should include:

?your name and your employer?s name

?your job title or a brief job description

?the date when your employment began

?your pay rate and when you will be paid

?your hours of work

?your holiday entitlement

?where you will be working (if you are based in more than one place it should say this along with your employer?s address)
?sick pay arrangements

?notice periods

?information about disciplinary and grievance procedures

?any collective agreements that affect your employment terms or conditions

?pensions and pension schemes

?if you are not a permanent employee how long your employment is expected to continue, or if you are a fixed term worker the date your employment will end

(from direct.gov.uk)

If you are paying under £100 a week and are the au pair's only employer then you don't have to worry about tax. Redundancy only kicks in after they have been employed by you for 2 years I think. Maternity could be an issue I guess, but if it's a fixed term contract for 6/9/12 months then I assume you wouldn't have a problem with having to hold the job open.

You do not need to include all the above - have a look at aupirworld.net - they have a template for au pair contracts there which you can amend to suit you.

Yes you need an employment contract.

No no no no no to the aupairworld.net contract.

What you want is the stuff from direct.gov.uk - here is a good starting point.

It can be very simple:

Your name, address (Mrs Bloggs, 1 AnyRoad, Anytown)
Au pairs name, address (Au pair, 5 AnotherRoad, AnotherTown, AnotherCountry, resident in the UK at 1 AnyRoad, AnyTown from 01/01/01)

Date contract starts, address where au pair works (01/01/01, 1 AnyRoad, Anytown)

Hour per week, pay per week (stated gross) and duties (1 hour per week, paid at £1 per week (gross) for X, Y, Z for our pet cat, Geoffrey)

Holiday entitlement - 5.6 week paid holiday which can include Bank Holidays, so equivalent to 4 weeks plus bank hols (5.6 weeks paid holiday per year to be chosen by the Bloggs family)

A sentence saying that the au pair is entitled to all statutory benefits which they accrue during their time here (aka none because they won't be earning enough)

Notice period, disciplinary procedure (verbal warning, written warning, dismissal) and cases for instant dismissal (gross misconduct) eg theft, neglecting, abusing or otherwise endangering the children, getting pissed on duty etc

IMO it's also worth writing in that you will be the au pair's primary employer in all circumstances, which means any other work she does is automatically her second job and she gets taxed/pays NI out of that.

You don't need to worry about pensions.

general info on employment

You are much better modifying a nanny contract (such as either from nannyjob) to suit you as it will cover the main employment points.

Why "No no no no no to the aupairworld.net contract" - what's wrong with it?

too many websites contradict each other on this topic. A lot of them say au pairs are NOT employees and then there are those that say they are.

If an AP wants to be treated as part of the family then surely she is not employee.

I am confused to say the least.

Au pairs if they come to UK as au pairs are not employees - they are meant to part of the family helping the family out with light household duties and babysitting. In return they get a small allowance & full board. The Council of Europe recommend that every au pair is issued with a contract and it is my understanding that the one on aupairworld.net complies with the Council of Europe recommendations.

ok this is what the BAPAA organisation say an AP is.

Nature of the Programme: The au pair programme is a cultural exchange programme and not a contract or work. Au pairs must be welcomed as a member of the family.

so isnt the letter of invitation enough of a contract per se?

Contract is not a "must" but I think to avoid any misunderstandings it it better to have a short contract which just states the duties the au pair is expected to carry out, the amount she gets paid, free time and how long she is meant to stay. You could of course state all this in the invitation letter.

I think the Council of Europe recommends contracts to avoid APs getting mistreated/overworked by the host family (tbh if the host is that way inclined I don't see what difference a contract is supposed to make).

Thank you all that is really helpful!

I think although everyone hopes that the aupair will stay foreeeeeever the time limit in contract is good idea.

Like with any childcarer jobs is it reasonable to ask for holidays to be taken at the same time as us (the family)? We would not want her to come with us on holidays so that would be her proper time off. Time to get away from one another hey?

This comes up periodically these days - their status is unclear as far as I can see it. It is safer by far to have a contract and to offer her the normal employment terms, ie holidays, agree grounds for dismissal etc. This is really important if you are planning for her to stay longer than a year as that is when more employment rights kick in (and again after two years). What we have done in practice is lengthen the invitation letter that the agency gets us to write to make sure we include the points that missus and Frakkin mention. We personally don't use the formal nanny job one as it contains a lot of verbiage I would worry the ap wouldn't understand and would terrify them. But we include the same general points. Not flawless - possibly - but also probably okay enough ish legally.

Whatever their status - family or employee - if you are paying them X amt and they get a second job that puts them over the taxable limit you will be obliged to register as an employer so please definitely include the point FRAKKIN mentions about being their primary employer if you are prepared for her to have another job.

If you haven't already offered someone a position, I would be tempted to stipulate no other formal contractual jobs for other reasons but maybe that's too late. Then the person could just say yes that works for me or no it doesn't.

Of course you need a contract. It is to protect both of you. Otherwise she could walk out with 1 minutes notice or you could sack her with the same.

Websites do seem to contradict each other on the issue of whether au pairs are employees, but it mostly seems to be au pair websites/orgs/agencies saying "no, don't worry it's a cultural exchange". I think that may have been true when there was an au pair visa category, but nowadays if an EU citizen is working in an EU country in exchange for money then they are an employee.

Contract is not going to stop anyone from walking out if that is what they are going to is it now?

No but it is still better to have one for both of you. Hopefully someone refusing to have one will appear non reliable and you wouldn't employ them.

Also European au pairs never needed a VISA

Having a contract that you stick to though will stop your au pair chasing you for holiday or notice pay later though - that's happened to posters here.

I'm sure there have been legal cases recently that have found au pairs to be workers rather than a cultural exchange.

"Also European au pairs never needed a VISA "

Really? I thought you used to need a visa to work/live in Europe.

There's this from one au pair agency that seems to come down heavily on the side that an au pair is an employee:

"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."

here

Why wouldn't you want to give them a contract? How would this be to your benefit or theirs?

No European au pairs didn't need a VISA because they did not come here to work they came on cultural exchange. If they were planning on staying longer than 12 months they needed to register.

Whether an AP is an AP or an employee depends on the hours worked and the amount she gets paid. Just because she gets paid does not automatically make her an employee.

If they are an au pair in the strict sense of the word they do not need a contract. However it is better for both sides to have one.

Can you clarify about the amount earned/hours worked? I wasn't aware employment status was based on this.

It's definitely nothing to do with money earned or hours worked. It's everything to do with the fact she gets paid. Judgements from the ECJ (I think, on phone, can't link) have ruled in the favour of a Turkish au pair being considered a worker and entitled to various employment rights.

A MNer had her au pair threaten to take her to court over several issues including the lack of a contract. Thankfully things were sorted out without it going that far but please don't assume that a contract is useless! It might only kick in in worst case situations but then it's worth more than it's weight in gold.

There is no such thing as an 'au pair' any more. They are exactly the same as any other live-in domestic employee like a housekeeper or a nanny. The term au pair referred to a now defunct immigration status, where restrictions were placed on hours/salary etc. Visas depended on your country of origin.

If she walks out on you there's not a lot you can do in practice but that's not the point. You could in theory take her to court for breach of contract. IMO a contract protects the employer more than the au pair in the most severe situations.

Ruled in favour of a Turkish au pair with regard to her right being able to rely on Article 6(1) of Decision No 1/80 for the purposes of obtaining renewed permission to work and a corollary right of residence. Same EC decision also gives a definition of an au pair.

There is a also European Agreement on au pair Placement ETS No 68 (I think?)

Oh this is so interesting!

Can I just say, as I was one myself, many many really many years ago, European aupairs needed visa, obviously depending where from in Europe but there was one for some countries anyway? Initially 6 months was ok but still needed stamp in passport then it was to home office for 2 years visa and police registration and got knows what else. That was obviously before the expansion of EU as I said many years ago