Nambalat v Taher & Ors

For the domestic-worker exemption in regulation 2(2) of the National Minimum Wage Regulations 1999, the central question is whether the worker is treated as a member of the employer’s family. This requires an overall assessment. The provision of accommodation and meals, and the sharing of tasks and leisure activities, are important indicators rather than separate or mechanically applied tests.

Broad equivalence between the worker’s household duties and those performed by family members is unnecessary. However, the worker’s contractual duties cannot be ignored. Duties which are exceptionally onerous or extensive may be incompatible with genuine treatment as a family member. The employer must establish the exemption, and tribunals must guard against its use to obtain cheap domestic labour.

The appellants were live-in domestic workers who claimed entitlement to the national minimum wage from their respective employers. Both Employment Tribunals found that their work was capable of falling within the domestic-worker exemption in regulation 2(2) of the National Minimum Wage Regulations 1999.

The Watford Employment Tribunal rejected Ms Nambalat’s national minimum wage claim. The London Central Employment Tribunal, by majority, upheld part of Ms Salim Udin’s claim because of the accommodation provided at two addresses. The Employment Judge dissented on that issue.

The Employment Appeal Tribunal dismissed Ms Nambalat’s appeal, save as to holiday pay. It allowed the employers’ appeal in Ms Salim Udin’s case and dismissed her cross-appeal. Both workers then appealed. The central issue was whether the arrangements showed that each worker was treated as a member of the family, particularly through the sharing of tasks.

1. Appeals dismissed. Pill LJ, with whom Black LJ and Bean J agreed, held that both Employment Tribunals had been entitled to conclude that the domestic-worker exemption applied.

2. Regulation 2(2) of the National Minimum Wage Regulations 1999 requires an overall assessment of whether work relating to a family household is done in the context of the worker being treated as a family member. The provision of accommodation and meals, and the sharing of tasks and leisure activities, are specified indicators of that central question.

3. The regulation does not require broad equivalence between the household work done by the worker and that done by family members. A worker receiving accommodation and meals may properly undertake more household duties. Nor are the relevant tasks confined to chores outside the worker’s contract. The extent of contractual duties remains relevant: demands that are sufficiently onerous and extensive may be inconsistent with genuine treatment as a family member.

4. Accommodation is not a separate test requiring a particular standard. Its provision and allocation are factors in the overall inquiry. The London Central Tribunal majority erred by isolating accommodation and by making a speculative comparison with how an imagined adult daughter would have been accommodated. On the accepted facts, the worker had been treated as a family member despite the family’s cramped accommodation.

5. Condition (a)(iv) operates as a cross-check and does not add a more restrictive requirement than condition (a)(ii). The employer bears the burden of establishing the conditions for exemption. Tribunals must be alert to whether an exemption intended for mutual benefit is being used as a device for cheap domestic labour. Neither case involved such abuse.

• Court of Appeal (Civil Division) dismissed both workers’ appeals and upheld the conclusion that neither was entitled to the national minimum wage under the domestic-worker exemption.
• Employment Appeal Tribunal on 13 December 2011 dismissed Ms Nambalat’s appeal, save as to holiday pay; allowed the employers’ appeal in Ms Salim Udin’s case; and dismissed her cross-appeal.
• Employment Tribunals The Watford Tribunal rejected Ms Nambalat’s national minimum wage claim. The London Central Tribunal majority found part of Ms Salim Udin’s national minimum wage complaint well founded because of accommodation at two addresses, while the Employment Judge dissented.