No Minimum Wage for migrant domestic workers

The Employment Appeals Tribunal has decided that three migrant workers who were treated as a member of the family were therefore excluded from the entitlement to be paid the Minimum Wage. There was also an issue of race discrimination that focussed on unlawful deductions from wages.

Summary

All three of the claimants were foreign domestic workers who were not family members, but “were treated as such” and were excluded from entitlement to the National Minimum Wage under Regulation 2 of the National Minimum Wage Regulations.

Important factors for consideration were: accommodation, sharing of meals, sharing of tasks, leisure activities. Tasks do not include work under the employment contract.

The Law

The National Minimum Wage Act states that anyone of school-leaving age or above who is a worker is entitled to the National Minimum Wage. This can be set by the Secretary of State for Business, Innovation, and Skills. It is currently £6.08 an hour for people 21 or over, and £4.98 for people aged 18-20.

In the National Minimum Wage Regulations the Secretary of State for Business, Innovation, and Skills is allowed to exclude people from being entitled to the Minimum Wage. One such group is people who are not family but “treated as such”, having regard to “the provision of accommodation and meals and the sharing of tasks and leisure activities.”

The Tribunal must also consider whether if the work had been done by a family member it would be considered t have been performed under  worker’s contract. If not, then there is no entitlement to the Minimum Wage.

The Facts

Jose v Julio

Ms Jose was employed by Ms Julio as domestic help and nanny between August 2003 and September 2009. As well as being paid £800 net per month Ms Jose had her accommodation, bills, food, and a return ticket to Angola once a year paid for. She worked Monday to Saturday, with Sundays off. Although her working day was long, she had large portions of time doing nothing during the day.

She was never paid the full £800 that she was supposed to be. This left a total shortfall of about £30,000.

The Employment Tribunal found:

the Claimant resided in the family home of the Respondent, that she was treated  as a member of the family, in particular as regards to the provision of  accommodation of meals and the sharing of tasks and leisure activities, that she was not liable to make any contribution to her living accommodation or meals, and that had the work been done by a member of the Respondent’s family it would not have been treated as being performed under a worker’s contract.

Nambalat v  Taher and Tayeb

Ms Nambalat was hired as a live-in housekeeper, with responsibility for housework and to provide some help with cooking. She was paid £180 a week. She had her own room and was provided with all of her meals. The family computer and printer were in her room, and people printed remotely from their laptops. They knocked if she was in there, or if the door was closed.

She ate with the family sometimes, paid for her phone calls to India, and was invited on outings with the family that she declined to go on.

The Employment Tribunal found:

… the Claimant did the bulk of the work.  As regards leisure activities the Claimant shared these with the children to some extent.  She was invited to the cinema and to family occasions although she declined.  She watched television with some members of the family. 

As regards the sharing of tasks and activities of the family, she was involved in cooking and preparation of the meals.  Time was spent with the children, especially Husain, which went beyond the scope of her duties

Her employment was in four phases:

1. 2000  two children
2. 2001  third child born
3. 2003 – 2006 Mrs Tayeb working full-time
4. 2006 Mrs Tayeb not working, all children at school

The extent of her duties varied depending on the period of her employment.

Udin v Chamsi-Pasha

Mrs Udin worked for the Chamsi-Pasha between 2004 and 2009. The family found it necessary to downsize in 2007, and moved then and again in 2008. This meant that living conditions were cramped. The tribunal disagreed about the relevance of this: the judge said that it was not decisive because the whole family had to tolerate the cramped conditions.

Although she ate alone, that was her preference. And the family rarely ate together. She was involved in leisure activities, and sometimes declined invitations.

Conclusions

Jose v Julio

The Employment Appeals Tribunal said they had to take a “holistic approach” to the issue of whether the workers were treated as if they family members. One of the factors was that the claimant was underpaid and did not complain. This shows, amongst all the other facts, that she was “fully integrated” into the family. Therefore she is excluded from getting the Minimum Wage.

Nambalat v  Taher and Tayeb

Although the computer and printer were kept in Ms Nambalat’s room, the family knocked on the door, which preserved her privacy. And she shared leisure activities with the children. This, and the facts above, show that she was treated like a member of the family. She was not therefore entitled to the Minimum Wage.

Udin v Chamsi-Pasha

The accommodation issue did not stop Ms Udin being treated like a family member. Everyone had to tolerate cramped conditions. the daughter did not have her own room for six months. She was not entitled to the Minimum Wage either.

Jose: Discrimination and Unauthorised Deductions

Jose was not paid the full amount agreed under her contract. It was alleged that this was racial discrimination because she had a weak grasp of English and a poor understanding of English money or of her rights. However, proper facts had not been concluded by the Tribunal – the case is going back to the Employment Tribunal to be decided.