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

The family-household exemption from the national minimum wage is construed narrowly. Whether a live-in domestic worker is treated as a member of the employer’s family is a holistic question. Particular regard is required for accommodation, meals, shared 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 unit, not the work for which the worker was employed. The Regulation does not require equivalence, parity, or joint performance of individual tasks. Where the exemption applies, the work is outside the statutory definition of work for national minimum wage purposes.

Five conjoined appeals concerned three live-in domestic workers and several related claims. The Employment Tribunals had held that Ms Jose, Ms Nambalat and, for some periods, Ms Udin were within the family-household exemption in regulation 2(2) of the National Minimum Wage Regulations 1999. The employers in Udin’s case appealed the contrary majority finding for two later periods.

The appeals also raised whether Ms Julio had unlawfully discriminated against Ms Jose, whether the Employment Tribunal had jurisdiction over unpaid wages forming a series of deductions, and whether holiday pay claims had been properly determined. The central issue was the proper construction and application of regulation 2(2) to the individual household arrangements.

1. National minimum wage. The appeals concerning the family-household exemption were determined as follows: Jose’s and Nambalat’s appeals were dismissed; Udin’s appeal against the majority finding was allowed, while her appeal against the unanimous finding was dismissed. All three claimants’ domestic work fell within regulation 2(2) of the National Minimum Wage Regulations 1999, so none was entitled to the national minimum wage.
2. The exemption must be construed narrowly, but the worker’s position in the family must be assessed holistically. Particular regard must be paid to accommodation, meals, shared tasks and leisure activities. That wording does not exclude other relevant matters, such as dignity, privacy, autonomy and exploitation.
3. “Sharing of tasks” means tasks performed by the family as a family unit. It excludes the contractual work for which the worker was employed. The Regulation does not require equivalence between the worker’s work and the family’s work, parity of treatment, or joint performance of the same task. Families may divide tasks between their members.
4. In Jose, the Tribunal’s failure to explain why nationality caused the alleged underpayment and holiday treatment made its discrimination decision non-compliant with the requirement for adequate reasons. The discrimination claim was remitted to a differently constituted Employment Tribunal.
5. The Tribunal had jurisdiction over Jose’s unpaid wages claim. The complete non-payment for 1–6 September 2009 could form part of a series of deductions under section 23(3) of the Employment Rights Act 1996. The holiday-pay deduction finding was set aside.
6. Nambalat’s holiday-pay claim was remitted to the same Tribunal. The Tribunal had not decided whether free air tickets constituted contractual remuneration or payment for annual leave under regulation 16 of the Working Time Regulations 1998.

• Employment Appeal Tribunal — appeals from Employment Tribunal decisions at London Central and Watford. The EAT dismissed Jose’s and Nambalat’s national minimum wage appeals; allowed Udin’s appeal against the majority decision and dismissed her appeal against the unanimous decision; remitted Jose’s discrimination claim to a differently constituted Tribunal and Nambalat’s holiday-pay claim to the same Tribunal; and allowed the appeal concerning Jose’s holiday-pay deduction.