Chamsi-Pasha & Anor v Udin & Anor (National Minimum Wage)

The family-household exemption from the National Minimum Wage applies only where the worker is genuinely treated as a member of the family. The assessment is holistic. Particular regard must be given to accommodation, meals, and the sharing of household tasks and leisure activities, but other material matters may also be relevant, including dignity, privacy, autonomy and exploitation.

“Sharing of tasks” concerns tasks performed by the family as a family unit. It excludes the work which the worker was employed to perform and does not require equality or equivalence between the worker’s tasks and those of family members. Accommodation must not be considered as a separate test.

The judgment concerned conjoined appeals involving three live-in domestic workers and their employers. The Employment Tribunals had held that the workers’ employment fell within regulation 2(2) of the National Minimum Wage Regulations 1999, except that a majority tribunal found that Ms Udin qualified for the National Minimum Wage during periods when her accommodation was more cramped.

The appeals raised the proper construction and application of the family-household exemption. Additional issues concerned the adequacy of reasons for a race-discrimination finding, jurisdiction over a series of unlawful deductions from wages, and holiday pay.

1. National Minimum Wage. The appeals concerning the family-household exemption were determined by applying regulation 2(2) of the National Minimum Wage Regulations 1999. The exemption is narrowly construed, but the question whether a worker is treated as a family member requires a holistic assessment.
2. Regulation 2(2)(a)(ii) requires particular regard to accommodation, meals, and the sharing of tasks and leisure activities. Those matters do not exclude consideration of dignity, privacy, autonomy and exploitation. “Sharing of tasks” means tasks performed by the family as a family unit. The worker’s contractual duties are irrelevant to that inquiry. The Regulation does not require equivalence, parity, joint performance of every task, or the sharing of every meal or activity.
3. In Ms Jose’s case, the Tribunal had failed clearly to explain how the exploitation involved in underpayment affected its conclusion that she was treated as a family member. Nevertheless, on the findings as a whole, the EAT concluded that she was fully integrated into the family and that the exemption applied.
4. In Ms Nambalat’s case, the Tribunal was entitled to find that the conditions were satisfied. The sharing of cooking and clearing up, some meals and leisure activities, and the respect shown for her privacy provided an adequate basis for the conclusion.
5. In Ms Udin’s case, the majority tribunal erred by treating accommodation as a separate and decisive test. The evidence had to be considered holistically. The cramped accommodation did not establish that she ceased to be treated as a family member. The exemption therefore applied throughout.
6. Other issues. The race-discrimination decision in Jose was inadequately reasoned and was not Meek-compliant. The claim was remitted to a differently constituted Employment Tribunal. The unlawful-deductions claim was within jurisdiction because the unpaid final period formed part of a series of deductions. The holiday-pay finding in Jose was set aside. Nambalat’s holiday-pay claim was remitted to the same Tribunal to determine whether provision of an air ticket constituted payment under regulation 16 of the Working Time Regulations 1998.

• Employment Tribunals: Separate tribunals sitting at London Central and Watford decided the National Minimum Wage claims. The tribunals held that Ms Jose and Ms Nambalat were exempt, and Ms Udin was exempt for one period but entitled to the National Minimum Wage for other periods by majority.
• Employment Appeal Tribunal: The appeals in Jose and Nambalat against the National Minimum Wage findings were dismissed. Ms Udin’s appeal against the majority decision was allowed, and her appeal against the unanimous decision was dismissed. The race-discrimination claim and Nambalat’s holiday-pay claim were remitted. The Jose holiday-pay finding was set aside.