Background: 

The claimant, an au pair, was connected with the third respondent through a website (aupair.com).  This allowed for a placement contract to be generated which stated that the respondent had a family of three, two adults (one being an adult son) and a boy aged 17. This was false as the ‘boy’ was 18 at the time.  The benefit for the claimant was that she could take language classes.  She would be paid £400 ‘pocket money’ per month and to assist the language lessons she could only work a maximum of 20 hours per week.   The claimant arrived from Argentina and undertook this work.  As an Italian-Argentinian citizen she was able to apply for EU Settlement Status and in due course her husband, from Argentina, came to Northern Ireland. 

The claimant was paid sporadically by the respondents during her time as an au pair.   It was common case that the claimant and third respondent had an intimate relationship.  The claimant became estranged from her husband.  She reconciled with her husband following his arrival in August 2021.    

The claimant made allegations of sexual harassment.  This included being inappropriately touched in a bar by the respondent’s friend known as ‘squirrel’  Further, that the claimant was inappropriately touched in a friend’s house.  The respondent did not call witnesses to controvert the claimant’s case and the Tribunal found that these incidents did happen. A third allegation against the claimant specifically was not accepted by the Tribunal considering the confusing and contradictory evidence from the claimant.  

The claimant gave notice but then retracted it in September 2021.  However, in November 2021 the respondent were moving property and the respondent suggested the claimant should be with her husband.   The fact that the work was allowed to continue the Tribunal found that the notice had been withdrawn and accepted by conduct.  In December 2021, the respondent sent a message thanking the claimant for her time and helping with Weeto (the Rottweiler).  The claimant asserted this along with a comment made by the respondent to friends that the ‘Argentinian was being sent back to South America’ amount to a dismissal. 

Outcome: 

The Tribunal first had to determine the claimant’s employment status.  It was found that she was an employee considering that she was engaging in personal service for the third respondent.  Such work was defined and agreed.  There was control exercised by the respondent to make it consistent with employment.  Considering that the employment ran from 1st November 2020 to 27th November 2021 she had the requisite qualifying period to claim for unfair dismissal.   As a result of the lack of any procedure in bringing the employment to an end, it was found that the claimant had been unfairly dismissed. 

The sporadic method of payment also led to a claim for failure to pay national minimum wage as well as payments for holiday pay.   The total amount of payments, made through cash, bank transfer and by cheque, amounted to £6,658.80 whereas at minimum wage for the hours worked throughout the employment the claimant was due £11,115.00 in total. As a result, an award was made for the shortfall of £4,456.20.  Bearing in mind the entitlement to holiday pay, an uplift for the failure to follow procedure and the successful unfair dismissal action, compensation in total was ordered in the sum of £9,610.40. 

On the sexual harassment points, it was found that the two situations agreed by the Tribunal did not take place during the course of employment. In both of the situations they were social and related to the relationship that she was having with the third respondent rather than related to the employment with the respondent.  Accordingly, the harassment claims were dismissed. 

Practical Guidance for Employers: 

Whilst this case has a very odd factual background, it does demonstrate the way in which central pillars of employment law still apply.  The tests for whether an individual is an employee such as those relating to control, the nature of the duties and how they were agreed were all taken into account.  By looking at those, they can even be applied in these fairly unique circumstances such that the claimant was deemed to be an employee and had various rights flowing from that status.   

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/