A recent judgment of the Court of Appeal has found that domestic workers are not entitled to the national minimum wage.
The NMW regulations contain an exemption for workers who live in their employer's family home and are not charged for food or accommodation but who are treated as “part of the family”.
Generally, live-in au pairs and nannies fall comfortably within this exemption as they are typically young foreign females who live with the family and who share domestic chores as well as partaking in family leisure activities and events. However, the case is less clear cut with live-in domestic workers who take on the role of “general housekeeper” and who may not join the family in communal activities.
The case before the Court of Appeal involved two such domestic workers who had already taken their cases through the employment tribunal system. One, Ms Nambalat, was found to fall within the exemption given that she shared meals with the family, would watch television with them and was invited on family outings.
The other worker, Ms Udin, also shared in communal family activities. However, her accommodation for part of her time with the family was a mattress on the dining room floor. Ms Udin argued that this meant she was not treated as one of the family. The tribunal agreed and found she was entitled to NMW for that period of time.
When the cases reached the Court of Appeal, however, it was held that neither worker was entitled to the NMW. In Ms Udin’s case, the standard of accommodation did not necessarily mean that she was not treated as part of the family since other members of the family were also living in cramped conditions at the time.
The Court held that these cases should be taken in the round and that accommodation is only one of the factors to be taken into consideration when deciding if someone is treated as part of the family. It found that, if the NMW exemption is applied correctly, courts and tribunals should be able to distinguish between genuinely exempt arrangements and cases where workers are being exploited.