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The provision which currently allows live-in domestic workers to be paid less than the National Minimum Wage (NMW) is expected to be repealed by 1 April 2024; Will this mark the end of the au pair?

The draft National Minimum Wage (Amendment) (No.2) Regulations 2023 have been laid before Parliament. This will repeal the existing provision which exempts many domestic workers who live in the family home from the NMW.

Under Regulation 57, National Minimum Wage Regulations 2015 (SI 2015/621), workers who live in their employer’s family home and are treated as part of the family (not charged for meals or accommodation and take part in sharing of tasks and leisure activities), do not qualify for the NMW and was originally intended to cover au pairs.

An au pair is typically a young person who travels from their home country to stay with a host family in the UK and helps with childcare and housework in return for pocket money, meals, and accommodation. The creation of the au pair aimed to facilitate affordable childcare for families, in turn providing cultural exchange for young people wishing to learn English.

Despite this, many au pairs have reported experiences which do not match with the intention of the scheme:

• Working longer hours than agreed,
• Being seen as constantly available,
• Feeling unable to say no as they live in their workplace,
• Having no time to attend English classes due to work,
• Being given less food than the rest of the family.

The Low Pay Commission argue that, in practice, Reg 57 has set an expectation that au pairs should be paid less than the NMW and due to a lack of regulation, they are being treated as cheap live-in nannies and cleaners. They also say that Reg 57 has created a loophole for exploitation of other live-in domestic workers as ‘au pair’ is not expressly defined.

Many workers in the UK on Overseas Domestic Worker visas are already vulnerable due to reasons not limited to language barriers, limited awareness of UK law and dependency on their employers to support their families. Visas are also limited to six months, meaning that workers cannot easily move between employers. HM Revenue & Customs are responsible for enforcing payment of the NMW; however, it can be difficult for them to decide the subjective question of whether someone is ‘treated as a member of the family’ or not. This means that in many cases, workers would be forced to go to court to prove an entitlement to NMW.

Following the Commission’s 2021 recommendation that Reg 57(3) of the 2015 Regulations be removed, draft regulations have now been put to Parliament to do this. The change, due on 1 April 2024, should reduce the scope for exploitation of live-in workers, although it remains to be seen whether it will be viewed as a welcomed protection for these workers, or whether employers will start to move away from the ‘au pair’ due to no longer having access to cheap labour.

 

https://minimumwage.blog.gov.uk/2021/12/13/not-so-equal-is-excluding-au-pairs-from-the-minimum-wage-still-the-right-thing-to-do/

 

https://www.independent.co.uk/news/uk/home-news/au-pairs-minimum-wage-nannies-b2041514.html

 

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