Responsibilities of an employment agency to an au pair

Employment agencies and employment businesses have a number of general responsibilities to their workers and candidates. In relation to the supply or introduction of au pairs, however, they have a number of additional responsibilities.  

The responsibilities of employment agencies and employment businesses are set out in the Conduct of Employment Agencies and Employment Businesses Regulations 2003. 

For the purpose of the regulations an “employment agency” ordinarily puts forward candidates for permanent vacancies and an “employment business” ordinarily supplies temporary workers. Where a company provides both services they will fall within both definitions.  

For the purpose of the regulations an “au pair” is a person who is received or is to be received into a private household under an arrangement whereby that person is to assist in the domestic work of the household in return for receiving hospitality and pocket money or hospitality only.

What are the specific requirements as to au pairs?

Travel to and from the place of work

Agencies and employment businesses are prohibited from entering into any arrangement under which an au pair is to be required to repay the agency, employment business or the hirer for the cost of the au pair travelling to and from their place of work out of money payable to the au pair by the hirer, agency or employment business.  

There is nothing in the regulations which would, however, prevent an agency or employment business from requiring an au pair to pay his own travel costs.  

Where an au pair is under the age of eighteen and the agency, employment business or hirer has arranged free travel or payment of fares for the au pair’s journey to the place of work, if the work does not start or upon it ending, the agency or employment business is required to either arrange free travel for the au pair’s return journey or pay his return fare, or obtain an undertaking from the hirer that he will arrange free travel or pay the return fare. The agency or employment business is required to give notice to the au pair setting out the details of the free travel or payment of fares including any conditions on which they are offered. 

Where an agency or employment business obtains an undertaking from the hirer that he will arrange free travel or pay the return fare and the hirer fails to honour that undertaking, it is the responsibility of the agency or employment business to either arrange free travel for the return journey of the au pair or pay his fare.

Accommodation

Agencies and employment businesses are prohibited from arranging for an au pair to take up a position other than as the hirer’s employee if in order to take up that position the au pair is required to occupy accommodation other than his home unless certain conditions are satisfied.  

For the purpose of the regulations an “employee” is an individual who has entered into or works under a contract of employment. A “contract of employment” is a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. 

The conditions that the agency or employment business must satisfy are that the agency or employment business has taken all reasonably practicable steps to ensure that: 

• Suitable accommodation will be available for the au pair before he starts work; 
• The au pair has been provided with details of the accommodation, including the terms on which it is offered and any cost to the au pair; and 
• Suitable arrangements have been made for the au pair to travel to such accommodation.

Other information to be provided to au pairs

Agencies and employment businesses are required to provide au pairs with such information as the au pair may reasonably request in order to decide whether or not to take up any particular position.

The requirement for parental or guardian consent in relation to au pairs under the age of eighteen

In the case of an au pair who is under the age of eighteen, agencies and employment businesses are prohibited from introducing or supplying the au pair to any hirer with a view to him taking up a position which will require him to live away from home unless the consent of the au pair’s parent or guardian has been given directly to the agency or employment business.

Loans to au pairs

Agencies and employment businesses are prohibited from arranging for an au pair to take up a position with a hirer on the basis that the au pair is to be loaned money, either by the hirer, the agency or the employment business, to meet his travel or other expenses in order to take up that position, on terms that the au pair is to be required to repay the lender a sum greater than the sum loaned. An agency, employment business or hirer is, therefore, prohibited from charging interest on any loan made to an au pair for these purposes. 

Where an agency, employment business or hirer is to lend money to an au pair to meet his travel or other expenses to be incurred in order to take up a position with a hirer, the agency or employment business is required to give to the au pair a document setting out details of the amount to be loaned and details of the terms for repayment. There is an exception to this where the loan is to come from a hirer and the agency or employment business is not aware of such details.