Recent au pair decision revives question of when is an employee not an employee
On 8 March 2016, the WRC awarded a Spanish au pair €9,229 when it held that she was an employee of her host family. As an employee, the WRC held that the au pair was entitled to the protection of the National Minimum Wage Acts 2000-2015, the Organisation of Working Time Acts 1997-2015 and the Terms of Employment (Information) Acts 1994-2012.
The decision attracted widespread media coverage as well as considerable concern from families who engage some of the estimated 20,000 au pairs working in Ireland. As these families have been learning since the decision was made, the implications of the decision are wide-ranging. First and foremost, au pairs and other domestic workers such as carers and childminders are entitled to be paid the minimum wage of €9.15 per hour, subject to a deduction of up to €54.13 per week for board and lodging. They are also entitled to a rest break of 15 minutes for every 4 ½ hours worked or 30 minutes for every 6 hours worked. This, of course, poses practical difficulties for parents who employ au pairs or childminders to care for their children while they are at work. Au pairs and childminders are further subject to the maximum 48 hour working week and are entitled to paid annual leave of up to 20 days per year. Of course, given their status as employees, they are also entitled to receive written employment contracts, payslips and PRSI contributions. All of which means that au pairs may no longer be the attractive alternative to crèches they once were. Not all parents are eager to take on the considerable legal responsibilities associated with being an employer.
However, au pairs are not the only class of worker in respect of which challenges have been raised about employment status. Four Uber drivers in England have initiated claims before the employment tribunal there, arguing that they should be granted “worker status” by Uber. Uber drivers are currently classified as independent contractors. Worker status would entitle them to benefits such as holiday pay and maternity pay. The drivers’ trade union, GMB, has stated that this is a test case with more claims to come if it is successful. Across the Atlantic in the United States, the car-sharing company Lyft has agreed a settlement with its Californian drivers who also sought to be classified as employees rather than independent contractors. Under the agreement, Lyft will provide additional benefits, although the drivers will maintain their independent contractor status.
What is clear from these developments both in Ireland and abroad is that the world of work is changing. Advances in technology have revolutionised many industries and the traditional workplace roles are becoming obsolete. Flexibility requirements driven by both employers and employees mean that the working relationship can be transformed almost beyond recognition.
At this year’s Ibec Employment Law Conference, we will address the question of when is an employee not an employee. This will involve a thorough examination of what it means to be employed, addressing concerns voiced about the erosion of the contract of employment and whether a new category of worker is emerging.
To book your place at the Employment Law Conference, please visit http://www.ibec.ie/EmployConf.
Wednesday, 6 April 2016