Ajayi v Abu & Anor (labour exploitation : human trafficking : modern slavery) (Rev 1)

A worker’s entitlement to the national minimum wage is not defeated by describing the worker as a member of the employer’s family. The family-household exemption in regulation 57(3) of the National Minimum Wage Regulations 2015 is unavailable where the worker is liable to deductions, or required to make payments, for accommodation or meals. Withholding part of wages on the basis that the worker owes the employer for those benefits constitutes a deduction, whether or not the employer claims a contractual entitlement to make it. Courts may also adopt proportionate hearing arrangements, consistent with Article 6, to reduce the risk of secondary victimisation of an alleged trafficking victim.

The claimant worked as a domestic worker in the defendants’ household between 2005 and 2015. She claimed breach of contract and entitlement to additional remuneration under the National Minimum Wage Act 1998, alleging that she had received only limited cash payments and that deductions had been made for food and accommodation.

The defendants relied on the family-worker exemption in regulation 57(3) of the National Minimum Wage Regulations 2015. The central issue was whether the claimant had been liable to deductions, or required to make payments, in respect of accommodation and meals.

1. The court directed special hearing arrangements, including separate entrances and waiting areas and screening during evidence. The measures were proportionate and consistent with the overriding objective, Article 6 of the Convention and the trafficking directive, having regard to the risk of secondary victimisation.
2. Under sections 1 and 17 of the National Minimum Wage Act 1998, a qualifying worker is entitled to at least the national minimum wage and to additional contractual remuneration where paid below that rate. Section 28 placed the burden on the defendants to establish that the claimant did not qualify or that the statutory defence applied.
3. The defendants’ spreadsheet recorded contractual salary figures, expenses for feeding and lodging, and balances produced by subtracting those expenses. The court rejected the explanation that the spreadsheet was wholly erroneous and found that deductions had been made for food and accommodation.
4. Whether money was withheld as an asserted debt for accommodation and meals, or simply not paid, was immaterial. Either amounted to a deduction for the purposes of regulation 57(3)(c). The defendants therefore could not rely on the family-household exemption.
5. The defence to the minimum-wage claim was struck out. Judgment was entered for the claimant on liability for a sum to be assessed, with costs to be assessed if not agreed. The remaining factual issues could not provide a defence once regulation 57(3) failed, so summary judgment was appropriate.