Following changes in the law, what are my obligations if I wish to hire an au pair?
QI am think of hiring an au pair. I know that the law has recently changed in this area and I was hoping that you could confirm what my obligation will be in this area.
AIn the event that you do proceed a hire an Au pair you will take on the obligations of an employer.
In 2016 a number of cases were taken which confirm the legal view that anyone employed in such a position is deemed to be an employee under the law, therefore entitled to the same rights and entitlement as any other employee.
In one such case an au pair made a claim to the Workplace Relations Commission (WRC) regarding her rate of pay.
The WRC adjudicator found that the employer had breached the National Minimum Wage Act, 2000 by failing to pay in line with the Act.
The employee was awarded €1,900 in total; €1,700 of that award was in relation to failure to pay in line with the Minimum Wage Act; while €200 was awarded for breaching her terms of employment. More recently the matter reached the headlines again when an au pair was awarded €5,500 by the Labour Court. In this case she was working as a live-in au pair.
She was in Ireland on a student visa and was only permitted to work 20 hours per week during term time and 40 hours per week during the holidays. It emerged during the case that the au pair had worked from 7am to 5pm every day – plus four additional hours babysitting – bringing her working week to 54 hours.
She was paid €150 per week plus board and lodging – an effective hourly rate of €2.78, and well below the then national minimum wage of €9.15 per hour. Furthermore, she did not receive any written contract or statement of her terms and conditions of employment.
When she decided to leave this employment, giving two days’ notice, the employer informed her that she must give a payment of €540 in lieu of four weeks’ notice. Given her length of service she would have been required to give one week as she had never been informed of a notice period.
The Labour Court ruled that the au pair had entered into a valid contract which could not be rendered illegal by the number of hours which she had been required to work by the employer as had been argued by the employer’s representative.
In this case the employer stated he had not been aware when engaging the services of the au pair that he was entering into an employer-employee relationship, or that a person working in his home had the same rights as other workers.
The Labour Court awarded the au pair €4,947.05 to bring her wages up to the national minimum wage, along with €510 to reimburse her for the “notice” money which she had been forced to pay the employer. working week is 48 hours, (this working week average should be calculated over a fourmonth period); › Ensure that the au pair gets rest breaks in line with the Organisation of Working Time Act which states that an employee is a break of 15 minutes after a 4.5-hour work period. If they work more than six hours they are entitled to a break of 30 minutes, which can include the first 15-minute break. There is no entitlement to be paid during these breaks and they are not considered part of working time; › Ensure that annual leave is given in line with the Organisation of Working Time Act; › Ensure that they issue written terms of employment in line with the Terms of Employment (Information) Acts 1994–2014 which states that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months of the commencement of employment.