Master and Servant
Labour & European Law Review Weekly Issue 299 13 December 2012
Workers are not entitled to the National Minimum Wage (NMW) if they live with their employer in the family home, unless they can show they fall within the exemption in the regulations. In the conjoined appeals of Nambalat v Taher and anor; Salim Udin v Chamsi-Pasha and ors, the Court of Appeal said that that the main test was whether the worker was treated as a member of the family as opposed to a domestic servant.
Ms Nambalat worked for nearly ten years as a general housekeeper and childminder, living in the family home. Her employer did not make any deductions from her pay for accommodation. She shared leisure activities with the children to some extent and although she was invited to the cinema and to join in with family social events, she turned down the offers.
Ms Salim Udin also lived with her employer (although she sometimes had to sleep on a mattress on the dining room floor) and also contributed to household tasks such as cooking and washing up. She looked after the smaller children and was involved in leisure activities with the family such as trips to the park and the cinema.
The claimants submitted separate tribunal claims that they were entitled to the NMW under regulation 2(2).
Regulation 2(2) states that the NMW does not apply to work that relates to the employer’s family household if the worker lives in the family home; is not a member of the family but is treated as one; shares in the tasks and leisure activities of the family; and does not pay for accommodation or meals.
Tribunal and EAT decisions
The employment tribunal hearing Ms Nambalat’s claim decided that as she shared in the tasks and leisure activities of the family, her claim satisfied the conditions in regulation 2(2) and she was not therefore entitled to the NMW.
However, a majority of the tribunal hearing Ms Salim Udin’s case held that she was entitled to receive it, because a member of the family would not be expected to sleep on a mattress on the dining room floor.
The EAT dismissed Ms Nambalat’s appeal but reversed the decision that Ms Salim Udin was entitled to the NMW, on the basis that the tribunal should not have approached the issue of accommodation in isolation. Instead, it should have taken an overall approach to family membership, accommodation being just one of several relevant factors to consider.
Decision of Court of Appeal
The Court of Appeal held that, for the exemption to apply, the worker must be treated as a member of the family, particularly with regard to “the provision of accommodation and meals and the sharing of tasks and leisure activities”.
However, in terms of the accommodation, the test was whether the worker was treated as a member of the family and not whether they were provided with a particular standard of accommodation. The tribunal was therefore wrong to decide in favour of Ms Salim Udin.
Although someone who receives free accommodation and meals might be expected to perform more household duties than other family members, what matters is whether the work was done “in a context in which the worker is treated as a member of the family”.
The way in which household tasks were shared, accommodation allocated, meals taken and leisure activities organised were also important indicators of whether the worker was being treated as a member of the family.
Tribunals have to decide whether, on the evidence, the worker was being treated as a member of the family and not as a domestic servant, taking particular care to ensure that the exemption was not being used as a device for obtaining cheap domestic labour.