Does your au pair sleep in a cupboard under the stairs?

For many families, particularly where both parents work, employing an au pair or other live-in domestic help is a good way to look after the family’s needs. However if you are not paying the national minimum wage of £6.19 per hour you could be in breach of the law.

There is an exemption from paying the minimum wage to domestic workers who live with their employers, as long as they are treated as part of the family. The ground rules were reviewed by the Court of Appeal recently.

Whilst it was argued that the exemption from having to pay the minimum wage should only apply to workers who become au pairs on a temporary basis to learn English, the Court of Appeal recently decided that two permanent domestic workers did fall within the exemption. The Court also gave guidance as to how the courts should decide whether the exemption applies.

A key factor is whether the family shares household tasks such as cooking and childcare with the worker. The court underlined that these tasks do not have to be shared equally, since a person who receives free accommodation and meals would be expected to do more work around the house. However, where a worker’s duties are very onerous this may be evidence that they are not being treated as a member of the family, and may be entitled to the minimum wage.

The Court said that if the standard of accommodation provided to the worker is significantly worse than the accommodation provided to family members, then this would suggest that the worker is not being treated as a member of the family. For example, at one stage in her employment one of the claimants had to sleep on a roll-up mattress in the dining room, but since the entire family was living in cramped conditions at the time the worker was treated in the same way as any other member of the family.

The Court of Appeal also said that whether the worker ate with the family and participated in leisure activities is relevant. The worker does not necessarily have to eat with the family, but it is indicative that she is treated as a member of the family if she eats the same food as them and is invited to eat with them if she chooses to do so. One of the claimants argued that she was only invited on family days out to help with the childcare. The Court noted that she could and did decline to join in, and that the family invited her because she was treated as a member of the family, and not because it was part of her duties as a domestic worker.

The Court of Appeal said that the particular circumstances of each family should be considered when deciding whether a worker is treated as a family member. It added that Employment Tribunals should be alert to cases where the exemption is being used to obtain cheap domestic labour, particularly since workers are likely to be female and from ethnic minorities, and are therefore vulnerable to exploitation.

Families seeking to rely on the exemption should keep in mind whether they are treating a domestic worker living in their home differently from a family member. By offering accommodation and board as part of the employment package, families may fairly avoid paying the au pair £6.19ph – as long as the cupboard under the stairs is just as comfy as the bedrooms upstairs, and food is served on a plate, and not in a dog bowl!

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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