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!

If it was me, I'd err on the side of caution and have a proper contract. I can't see that it would cost you anything, and it protects you and the au pair if anything goes wrong.

The point is in that judgement the au pair was counted as an integral part if the employment force and given her rights. The definition is no longer valid as it was under the old immigration status, apparently. There is now no definition of an au pair as the conventions are non-binding.

We have this discussion a LOT on here, and the safest thing to do is to treat them as an employee in the absence of any other definition. I'm still waiting for responses to my letter which asked for one

The point is in that judgement the au pair was counted as an integral part if the employment force and given her rights. The definition is no longer valid as it was under the old immigration status, apparently. There is now no definition of an au pair as the conventions are non-binding.

We have this discussion a LOT on here, and the safest thing to do is to treat them as an employee in the absence of any other definition. I'm still waiting for responses to my letter which asked for one

Oops didn't mean to post twice! Stupid phone!

AP placements fall under Youth Mobility Scheme.

UK is a signatory to ETS No 68 - EU Treaties are binding.

Again, ECJ's decision relating to a Turkish au pair and two students was given in relation to whether or not they were 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 - it did not abolish the concept of au pair. As I stated before the judgement gives a clear definition of what an AP is and is in line with ETS No 68.

Of course it is always better to have a contract.

Koumak - you are right, 6 months was ok without a VISA then it was off to the Alien Registration Office

Check your sources Mingg.

The UK is not a signatory to ETS No. 68, only Denmark, Spain, France, Italy, Luxemburg and Norway are (and Luxembourg has since denounced it).

You are correct that Payir did not abolish the concept of au pair. What the judgement in that case did say was that any 'special status' that au pairs have does not reduce their rights as workers. Among other things, all workers have the right to receive a written statement of employment particulars containing the information regarding hours, holiday, disiplinary/greivance procedures etc. as mentioned elsewhere in this thread.

In the UK, au pairs are employees.

The YMS has no bearing on employment status. People under that scheme are free to take up such positions, or indeed almost any other job, but it doesn't replace the au pair visa, which was limitied to djfferent countries anyway. As mra has pointed out the UK is not bound by any of the conventions often quoted about au pairs and their special status, which no longer exists anywhere in UK law, so while the concept or the job hasn't been abolished - that it's a young foreign person wanting to experience life in the country doing childcare/housework in return for board, lodging and a small remuneration - they are for all legal intents and purposes live in (so exempt from NMW) domestic employees.

MrA - my source is a European Treaty book which shows UK as a signatory. However it would not be the first time the signature pages have been mixed so I take your word for it.

When I said earlier that au pair/worker status depends on the working hours and the amount paid I meant that if you are working for 5 hous a week and get paid £20 yet spend 20 hours a week attending language courses, you'd be hard pushed to find a court who would rule that that the activity undertaken is not marginal and ancillary and vice versa if you work 40 hours and get paid £300/week (figures not realistic but you get my point). The same is also mentioned in the Payir opinion:

"An au pair who, like the claimant Payir, according to the national court, looks after the host family?s children and does housework for 25 to 30 hours a week will as a rule have the status of a worker.
With a weekly working time of 25 to 30 hours and activities such as child care and housework it cannot be said, with respect either to the duration of the activity or to its content, that there is only a purely marginal and ancillary activity. On the contrary, it is an effective and genuine activity for the purposes of the concept of worker.
Nor does the fact that an au pair does not pursue a full-time activity prevent her from having the status of worker. In the context of Article 39 EC the Court has already ruled that a person who only works part-time is to be regarded as a worker. (6) That must also apply in the context of Article 6(1) of Decision No 1/80. The decisive point must, rather, be whether an effective and genuine activity is pursued that is not purely marginal and ancillary.
It remains to point out, in conclusion, that an au pair relationship may take different forms. Whether an au pair thus satisfies the criteria of the concept of worker depends on the specific format of the individual case."

Frakkit - my comment about au pair placements falling under Youth Mobility Scheme was not intended as a comment about their employment status. It was a response to "There is no such thing as an 'au pair' any more" which is not true. The au pair concept has not been abolished. I'd be very interested to see hear how the authorities will treat this so I hope you start a new thread once you receive a response to your letter.

Under BR3 visa category there is still provision for Au-Pair, though it ONLY applies to nationals of Bulgaria and Romania.
See section 5 of form BR3

There are conditions such as:
~ help in the home in which you are being placed for up to five hours a day;
~ get at least two days off a week;
~ get an allowance and your own room;
~ are being placed with an English speaking family.

The 'no such thing as an au pair' any more is more than there's not such thing as JUST as au pair any more, although I phrased it badly. They are workers. Live in domestic ones. Even if they only work 5 hours a week for £20 AS LONG AS the family would be paying someone to do those 5 hours. Even the ones who come under a BR3 visa.

Au pairs have historically been seen through these lovely rose tinted glasses whereby we'll all welcome lovely foreign students who want to improve their English and we give them a bedroom and a bit of pocket money and they'll generally muck in. In the majority of cases that just doesn't exist any more. Au pairs now are paid to do specific jobs which often the parents cannot do themselves, therefore they are being paid for a service which means they get a wage which means they're workers.

I'm waiting for a response from no fewer than 12 organisations I figured the more the merrier

C/P from my lengthy letter:

The questions I would like to see answered are:

Who can legally be an au pair? What is the justification for this?

What is the employment status of an au pair in the UK: employee, worker or something else? What is the justification for this?

If the au pair is not regarded as a worker or employee what are their rights receiving benefits from a host family in return for work? Are they entitled to a contract, holidays, notice of dismissal and a disciplinary procedure etc.? Is there legal recourse for them against families who treat them unfairly?

Is this status valid regardless of whether or not the au pair is taking English classes?
Is this status valid if the usually home language of the family they live with is not English?

Is this status valid regardless of the amount of money being paid to the au pair?

Does an au pair have a right to a written agreement with the family?

Does the precedent created by the Court of Justice of the European Committees in the ruling on ?Payir et al? designating an au pair as a worker have any bearing on this? I would be particularly interested in your interpretation of the tests carried out to determine that the au pair in this case was a worker and your view on the following quote regarding Ms Payir?s activities for 15-25 hours per week:
?that employment was a genuine and effective economic activity, and
that employment was in accordance with national laws relating to employment and immigration;?

Recognising that EU citizens have the right to work and live in different countries and that a UK national doing the job be counted as employed with full employment rights, is it discriminatory to deny au pairs who are EU citizens these rights?

Do those entering the country on a tier 4 visa to work have the same rights as any other employee in the UK? Are they able to take up placements as an au pair? If this is the case and au pairs are not typically accorded employment rights are their rights waived or are they accorded additional rights? Given that English is an official language of 3 of the countries named in the scheme are nationals of those countries still considered to be participating in a linguistic and cultural exchange?

Considering that the UK is not a signatory to the 1969 Council of Europe do the provisions detailed therein have any impact on determining the status of a person working as an au pair in the UK?

The agreement, to which the UK is not a signatory, specifies help with day-to-day tasks around the home. If one parent is not present and the au pair is left in sole charge of children does this still count as a day to day task?

Are there any specific advantages to possessing or not possessing employment status as an au pair?

At what point does a young person cease to be an au pair and instead become some other category of live-in domestic help?

What are the implications for the payment of tax and National Insurance on behalf of the au pair if an au pair is not considered an employee but is paid above the earnings threshold?

I've just noticed a typo though...maybe they're not replying becoz I can't speak English proper like.

The Inland Revenue consider au pairs to be employees - I have discussed this issue with them.

This means that the minimum wage legislation also applies, and that you also have to register as an employer, even if your employee's annual earnings are below the limits for PAYE and NIC.

Did you discuss the "benefits in kind" (food, accommodation etc) element of their pay with IR?

Butterbur - did HMRC say that NMW would not apply but that the accommodation offset could be used?

Mingg... the link above includes the following
"However, accommodation is the only benefit in kind whose value can be counted towards NMW pay." So it looks like Food would not count.

Interesting, as that would therefore mean that the same would apply to live-in nannies.

Oh that went wrong... try again...

Butterbur - did HMRC say that NMW WOULD apply but that the accommodation offset could be used?

Butterbur - did they actually say that NMW applies to au pairs? I am asking because DirectGov says the following:

If you are a member of your employer?s family, live in their home and help run a family business or help with household chores, you are not entitled to the NMW if you share in the family?s tasks and activities.
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.

and HMRC's site links to DirectGov yet does not say domestic workers would be excluded?

Domestic Workers is a a visa category, so when that term is used they may mean those with a Domestic Workers visa - rather than someone who works in a domestic home.

I do wonder if it's the "share in the family's tasks and activities" plus "share in the household's work and leisure activities" bits are important. As a Domestic Worker would not be doing that, where as an Au-Pair would. A live-in nanny may or may not be included in things like Leisure Activities, so they may fall under NMW if they don't socialise with the family outside of working hours. Hmm, all looks a bit tricky and variable depending which site you look on for information.

Do au pairs do leisure activities now though? Could this be the defining point?!

[suspects there isn't one because nothing is that simple]

Increasingly au pairs don't spend time with the family when not working...

Also are nannies with self contained accom but no door deemed to not meet the above criteria?

Thank you all for your points. This is turning out to be a very interesting conversation. Not that I can say I am any smarter!

not really wanting to get involved in this debate all over again - but..!

it is wrong to say that increasingly au pairs don't spend time with the family when not working. Au Pair means living as part of the family just as it has always meant.

If increasingly they are not being treated as a member of the family then the families doing that are acting incorrectly. They are trying to employ someone in an au pair capacity in order to pay lower wages and avoid giving employment benefits, but avoiding the extra benefits, personal time and additional expenses that are normally invested when treating the person as a family member.

My belief is that if families do not want to treat the person living in with them in traditional au pair style, then they have the option of treating them as a regular employee (as recommended by the UK government see below). In this case I think they should be paid the minimum wage with accommodation offset.

This is the advice from the government about au pairs registering 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.

"Increasingly au pairs don't spend time with the family when not working..." Frakkit I agree.
Treesa you are assuming that au pairs are not spending time with the family because the family prefers them not to. All the ones I know are not spending time with their families because they they do not want to, they rather go out with their friends.

Butterbur - Maybe the answer that InlandRevenue gaveyou was because they look after taxes, and IR would treat any earnings an au pair receives in exactly the same way as any other person. Usually their pocket money falls under their radar screen - but especially if they are working in another job they are then quite likely to go over the threshold and so the tax man suddenly becomes interested as those earnings are then liable for taxation.

Isn't this the same for our own children if they receive pocket money and/or payments from other jobs that takes them over the same thresholds though.

Have wondered about that too Treeesa

Mingg - maybe so but in both cases isn't this irrelevant if both sides have agreed to the person working under an au pair agreement.

If the au pair is choosing not to want to be involved with the family - and this is an issue for the family, presumably the family would seek to address this - unless this arrangement suits them.

It is more of an issue I imagine if the family is choosing to ignore the au pair and not treat them as a family member. The au pair would be less likely to air their feelings and express any desire to change things for fear of losing their position.