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Au pairs and the right to pay less than the national minimum wage

We have all seen the Jubilee celebrations and rightly commend the Queen for her many years of service – but let’s be fair, she didn’t open all those hospitals and attend all the events without a little childcare assistance.  In fact, word has it that each child had at least 3 nannies.  Sounds all right to me!

Sadly, not everyone can afford a nanny and so many families have historically opted for the most cost-effective option of having live in au pairs.  This concept was originally introduced to make it possible for families to host au pairs (typically school leavers who wanted to live abroad) affordably as part of a cultural exchange programme in which they live and work and are fed as part of the family and are given “pocket money” and free time to explore their temporary home.

Brexit has resulted in a huge decline in the numbers of au pairs working in the UK as there is now practically no route for most au pairs to legally enter the UK to work. The Nanny Solidarity Network estimates that the total number of au pairs has nearly halved since Brexit which at one time saw between 60,000 – 90,000 au pairs in the UK on an annual basis.

The Law

The National Minimum Wage: which currently sees 18 – 20 years old being paid £6.83 and 21 – 22 years old £9.18 per hour doesn’t apply to au pairs who in 1999 were covered by the “family worker exemption” which stipulated employees are not obliged to pay minimum wage if the worker was living in the home of their employer and are treated like they are part of the family.

While the exemption was intended to apply to au pairs alone, it has also provided a loophole for exploitation of live-in domestic workers. This is because the legislation does not precisely define the role of an au pair. A domestic worker who is working for a household as a housekeeper or carer may live with their employer and receive accommodation and food. As a result, their employer may argue that the exemption applies and a lack of employment protections then unfairly apply.

New Approach

Last month, the government lent their backing to the Low Pay Commission’s advice to change the law on minimum wage for live-in workers.

It is believed that the Government intends to introduce a visa route for au pairs and although it does not wish to repeal the exemption, but instead will help to overcome the Visa issues which have occurred due to Brexit and then further clarify the exemption legislation which will better define the role of an au pair and duties and hours worked and the scope of their duties to ensure that it cannot be applied to domestic workers carte blanche.

Posted on 9 June, 2022 by Ortolan

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