Nambalat v Taher & Anor (and consolidated appeals: Jose; Udin; Julio; Chamsi-Pasha)

An exemption from the national minimum wage for live-in domestic workers must be construed narrowly. Whether a 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 matters may be relevant, including dignity, privacy, autonomy and exploitation.

“Sharing of tasks” concerns tasks performed by the family as a family unit. It excludes the contractual work for which the worker was employed and does not require equivalence or joint performance. The exemption applied to all three domestic workers on the facts.

Five consolidated Employment Appeal Tribunal appeals arose from findings concerning three live-in domestic workers and the national minimum wage, together with related claims involving race discrimination, unauthorised deductions from wages and holiday pay.

The Employment Tribunals had held that Ms Jose, Ms Nambalat and, for certain periods, Ms Udin were not entitled to the national minimum wage under regulation 2(2) of the National Minimum Wage Regulations 1999. Other appeals challenged the reasoning and orders concerning discrimination, a series of wage deductions and annual leave. The central questions were the proper construction and application of the family-household exemption, the adequacy of the reasons given, jurisdiction over the deductions claim, and the appropriate holiday-pay orders.

1. National minimum wage. The appeals concerning the family-household exemption were determined by a narrow and holistic construction of regulation 2(2) of the National Minimum Wage Regulations 1999. The relevant question is whether the worker was integrated into the family and treated as a family member. Particular regard must be had to accommodation, meals, shared tasks and leisure activities, while dignity, privacy, autonomy and exploitation may also be relevant.
2. “Sharing of tasks” means tasks performed by the family as a family unit. It does not include the work performed under the worker’s employment contract. The Regulation does not require equivalence in the amount of work done, joint performance of individual tasks, or sharing every meal, task or leisure activity. Family habits and the overall circumstances must be examined.
3. Applying that approach, the Tribunal’s findings justified the exemption for Jose and Nambalat. In Jose, the underpayment and exploitation of the Claimant’s migrant-worker position were relevant but did not prevent the overall conclusion that she was integrated into the family. In Udin, the majority had erred by treating accommodation as a separate test and considering it in isolation. The exemption applied for all periods, so that appeal was allowed for the later periods and dismissed for the earlier period.
4. Race discrimination. The reasons for finding racial discrimination did not adequately explain the factual and legal route from the findings to the conclusion. The appeal was allowed and the claim remitted to a differently constituted Employment Tribunal, applying the principles in Sinclair Roche and Temperley v Heard.
5. Unauthorised deductions. Non-payment of wages for 1–6 September 2009 could form part of a series of deductions under section 23(3) of the Employment Rights Act 1996. The difference between complete non-payment and partial payment did not make the finding perverse. The holiday-pay deduction finding in Jose was set aside.
6. Holiday pay. In Nambalat, the Tribunal had not determined whether the provision of an air ticket constituted pay for annual leave under regulation 16 of the Working Time Regulations 1998. That narrow issue was remitted to the same Tribunal.

• Employment Appeal Tribunal: Appeals from Employment Tribunal decisions dated 13 August 2010, 17 August 2010 and 27 October 2010 were consolidated. The EAT dismissed the Jose and Nambalat appeals on national minimum wage liability, allowed Udin’s appeal concerning the later periods, and dismissed her appeal concerning the earlier period. It remitted the race-discrimination claim in Jose to a differently constituted Tribunal and the Nambalat holiday-pay issue to the same Tribunal.