Nambalat v Taher

The family-household exemption from the national minimum wage is construed narrowly, but applied holistically. Particular regard is required to accommodation, meals, and the sharing of family tasks and leisure activities. Other relevant matters may include dignity, privacy, autonomy, and exploitation.

“Sharing of tasks” concerns tasks performed by the family as a family unit. It excludes the domestic worker’s contracted work and does not require equivalent or jointly performed tasks. The exemption applied to all three domestic workers considered in the conjoined appeals.

Ms Nambalat appealed against an Employment Tribunal decision that her live-in domestic work was excluded from “work” by regulation 2(2) of the National Minimum Wage Regulations 1999. She also appealed the Tribunal’s refusal of her claim for payment in respect of accrued and unpaid annual leave.

The appeals were heard with related appeals concerning Ms Jose and Ms Udin. The central issues were the proper construction of the family-household exemption, whether the Tribunal had adequately reasoned a race-discrimination finding, whether unpaid wages formed part of a series of deductions, and whether provision of an air ticket constituted holiday pay.

1. The appeals concerning the national minimum wage were determined by applying regulation 2(2) of the National Minimum Wage Regulations 1999. The exemption is narrow, and the worker’s position within the household must be assessed holistically.

2. Particular regard must be given to accommodation, meals, and the sharing of tasks and leisure activities. The wording also permits consideration of matters such as dignity, privacy, autonomy, and exploitation.

3. “Sharing of tasks” means tasks performed by the family as a family unit. It does not include the work which the worker performs under the employment contract. Regulation 2(2)(a)(ii) does not require equivalence in the amount of work done, or joint performance of each task. Family tasks may be divided between household members.

4. Applying that approach, Ms Nambalat was treated as a member of the respondents’ family. The evidence of shared cooking and clearing up, shared or offered leisure activities, and time spent with the children supported the Tribunal’s conclusion. Her work was therefore outside the statutory definition of “work” for national minimum wage purposes.

5. The national minimum wage appeals in Jose and Nambalat were dismissed. In Udin, the appeal against the majority decision was allowed and the appeal against the unanimous decision was dismissed.

6. The race-discrimination finding in Jose was remitted to a differently constituted Tribunal because the reasons were not Meek-compliant. The unlawful-deduction jurisdiction appeal was dismissed, applying Group 4 Nightspeed Ltd v Gilbert. The holiday-pay deduction finding was set aside.

7. Ms Nambalat’s holiday-pay appeal was allowed and remitted to the same Employment Tribunal. The Tribunal had failed to determine whether an air ticket supplied during earlier years constituted pay for annual leave under regulation 16 of the Working Time Regulations 1998.

• Employment Tribunal: found that Ms Nambalat was not entitled to the national minimum wage and rejected her claim for payment in lieu of accrued untaken annual leave.
• Employment Appeal Tribunal: dismissed the national minimum wage appeal, but allowed the holiday-pay appeal and remitted that issue to the same Employment Tribunal.