Julio v Jose (National Minimum Wage)

The family-household exemption from the national minimum wage is construed narrowly. Whether a domestic worker is treated as a member of the employer’s family is assessed holistically. Particular regard is given to accommodation, meals, and the sharing of tasks and leisure activities, but dignity, privacy, autonomy and exploitation may also be relevant.

“Sharing of tasks” concerns tasks performed by the family as a family unit. It excludes the work for which the worker was employed and does not require equivalent or jointly performed work. A tribunal must not isolate one factor, such as accommodation.

Four conjoined Employment Appeal Tribunal appeals concerned live-in domestic workers and the family-household exemption in regulation 2(2) of the National Minimum Wage Regulations 1999. The Employment Tribunals had held that Ms Jose and Ms Nambalat were exempt, and had reached differing conclusions for Ms Udin during different periods.

The appeals also concerned race discrimination, unauthorised deductions from wages and holiday pay. The central issues were the proper construction of regulation 2(2), the adequacy of reasons for the discrimination finding, whether a complete non-payment formed part of a series of deductions, and whether an air ticket constituted holiday pay.

1. National minimum wage. Regulation 2(2) must be construed narrowly, but the question whether a worker is treated as a family member is holistic. Particular regard must be paid to accommodation, meals and shared tasks and leisure activities. Other material matters may also be considered, including dignity, privacy, autonomy and exploitation (paras [42]-[46]).
2. The “sharing of tasks” means tasks performed by the family as a family unit. It does not include 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, nor does it require the same task to be performed jointly. Family tasks may be divided between members (paras [45]-[46], [51]).
3. The exemption applied to all three claimants. The appeals by Ms Jose and Ms Nambalat against the national minimum wage findings were dismissed. Ms Udin’s appeal against the majority finding was allowed, while her appeal against the unanimous finding was dismissed. The Tribunal had erred by treating accommodation as a separate test and by considering it in isolation. The evidence, viewed holistically, established that she was treated as a family member (paras [48]-[58], [76](i)).
4. The race-discrimination finding in Jose was not adequately reasoned. The Tribunal had not explained the basis for concluding that the treatment was because of nationality or national origin, or how the evidence supported its conclusion. The claim was remitted to a differently constituted Employment Tribunal (paras [62]-[66], [76](ii)).
5. The Tribunal had jurisdiction to determine the unlawful-deduction claim. Non-payment for the final period could form part of a “series” of deductions, notwithstanding that the whole sum, rather than only part of it, was unpaid. The appeal on jurisdiction was dismissed, applying Group 4 Nightspeed Ltd v Gilbert (paras [67]-[70], [76](iii)). The holiday-pay deduction finding in Jose was set aside by consent (paras [71], [76](iv)).
6. Ms Nambalat’s holiday-pay claim was remitted to the same Tribunal. The Tribunal had to decide whether the provision of an air ticket amounted to payment under regulation 16 of the Working Time Regulations 1998 (paras [72]-[75], [76](v)).

• Employment Tribunals: The Tribunals at London Central and Watford made the findings described at paras [2]-[3], including that Ms Jose and Ms Nambalat were not entitled to the national minimum wage and that Ms Udin’s entitlement differed between employment periods.
• Employment Appeal Tribunal: The national minimum wage appeals were disposed of under regulation 2(2) of the National Minimum Wage Regulations 1999. The race-discrimination issue was remitted to a differently constituted Tribunal, and Ms Nambalat’s holiday-pay issue was remitted to the same Tribunal.