Pay – Statutory minimum
Nambalat v Tayeb and another; Udin v Chamsi-Pasha and others: Court of Appeal, Civil Division (Lord Justice Pill, Lady Justice Black and Mr Justice Bean): 5 October 2012
Regulation 2(2) of the National Minimum Wage Regulations 1999, SI 1999/584 stated: 'In these Regulations "work" does not include work (of whatever description) relating to the employer's family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied ... (a) The conditions to be satisfied under this sub-paragraph are - (i) that the worker resides in the family home of the employer for whom he works, (ii) that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities, (iii) that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and (iv) that, had the work been done by a member of the employer's family, it would not be treated as being performed under a worker's contract or as being work because the conditions in sub-paragraph (b) would be satisfied ... (b) The condition to be satisfied under this sub-paragraph are - (i) that the worker is a member of the employer's family, (ii) that the worker resides in the family home of the employer, (iii) that the worker shares in the tasks and activities of the family, and that the work is done in that context.'
The instant appeal concerned two separate claims which had been heard together as they raised similar issues. The appellant employees challenged findings that regulation 2(2) of the National Minimum Wage Regulations 1999, SI 1999/584 (the Regulations) applied to the work that they carried out. In the first appeal, the employee was employed by a family as a general housekeeper and child minder. The employee shared meals and social life with the employers.
She was involved in making beds, tidying and vacuuming. She also helped to prepare a light midday meal for herself and her employer and would be involved in assisting with the preparation of the evening meal and helping to serve it. The employee also had responsibilities for dealing with the employers' youngest child. Some of her meals were taken together with members of the family, but the employee was free to take all meals with the family. The employee shared her leisure activities with the employers' children to some extent. She was invited to the cinema and to family occasions, although she declined, and she watched television with some members of the family.
The employment tribunal (the tribunal) found that the conditions of regulation 2(2) of the Regulations were satisfied, with the result that the employee's work was not defined as work for the purposes of national minimum wage (NMW) legislation. That decision was upheld by the Employment Appeal Tribunal (EAT). In the second appeal, the employee was also employed by a family. The employee travelled on trips with the family, helped out and looked after the smaller children and contributed to other household tasks. She initially had her own room, but when the employers moved to smaller accommodation, the employee shared a room before deciding to sleep in the dining room on a mattress.
The employee shared meals with the family and was involved in the family's leisure activities. The tribunal found that, whilst the employee had shared household tasks with members of the family, the conditions of regulation 2(2) of the Regulations had not applied because a member of the employer's family would not have been treated as the employee had been treated in regard to the accommodation, in other words, a family member of the same age and gender of the employee would not have been required to give up a small bedroom and sleep on a mattress in the dining room.
The EAT upheld the tribunal's findings in regard to the sharing of tasks and activities, but found that the tribunal had erred in its consideration of the issue of accommodation. The EAT considered that accommodation was one of several factors to take into account, and overall the employee was to have been treated as a member of the family with the effect that her work had attracted the conditions of regulation 2(2) of the Regulations. The employees appealed.
The employees submitted that the exclusion provided for by regulation 2(2) of the Regulations applied to au pairs and generally employees who visited the country to improve language skills and who lived with a family, and should not be extended to migrant domestic employees the purpose of whose employment was to relieve the family of most of its household tasks.
The appeals would be dismissed.
For the exemption in regulation 2(2) of the Regulations to apply, the work in question had to relate 'to the employer's family household' and that 'the work is done in that context', the context being that of a family household in which the employee was treated as a member of the family. For the condition contained in regulation 2(2)(a)(ii) of the Regulations to be satisfied, it was a central requirement that the employee was treated as a member of the family. That condition required that, when considering whether the employee was treated as a member of the family, particular regard was to be had to 'the provision of accommodation and meals and the sharing of tasks and leisure activities'.
The word 'task' did not lead to the conclusion that the sub-paragraph could be concerned only with chores within the home, undertaken by family members, which fell outside the scope of the paid duties of the employee. An overall view was required and a judgment made as to whether the employee was treated as a member of the family, and what mattered was whether the work was done in the context in which the employee was treated as a member of the family.
The way in which household tasks were shared was an important indicator of whether the employee was treated as a member of the family. The way in which accommodation was allocated, meals taken and leisure activities organised were other indicators. It was for the tribunal to decide whether, on the evidence, it was established that the employee was being treated as a member of the family and not as a domestic servant (see - of the judgment).
In the first appeal, the tribunal 's approach to the issue, or its assessment of the evidence, could not be faulted. The tribunal had addressed the statutory test and had adopted the correct approach to it. The tribunal reached a conclusion that it had been entitled to reach. In the second appeal, the EAT had been correct to find that the tribunal had erred in requiring that the accommodation provided for the employee had been of a particular standard. However, save as to that issue, the tribunal's approach had been appropriate and had complied with the statutory requirement (see , , ,  of the judgment).Decision of employment Appeal Tribunal  All ER (D) 100 (Jan) affirmed.
Peter Oldham QC and Julian Milford (instructed by North Kensington Law Centre) for the employees; Rehana Azib (instructed by Evans Dobb Solicitors) for the employer in the first appeal; Jonathan Goldberg QC and Bushra Ahmed (instructed by Goldkorn Mathias Gentle Page LLP) for the employer in the second appeal.