Cart 0
Login
Northern Ireland
Nambalat v Taher & Others [2012] EWCA Civ 1249
Published on: 12/10/2012
Issues Covered:
Pay
Article Authors The main content of this article was provided by the following authors.
Background The appellant migrant workers appealed against a decision of the Employment Appeal Tribunal which held that they were not entitled to receive the national minimum wage. The Court had do decide whether their circumstances fell under Regulation 2(2) of the National Minimum Wage Regulations 1999, which lays out an exception to the normal minimum wage requirements. The Regulation states:95"(2) In these Regulations 'work' does not include work (of whatever description) relating to the employer's family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied. (a) The conditions to be satisfied under this sub-paragraph are– (i) that the worker resides in the family home of the employer for whom he works, (ii) that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities; (iii) that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and (iv) that, had the work been done by a member of the employer's family, it would not be treated as being performed under a worker's contract or as being work because the conditions in sub-paragraph (b) would be satisfied. (b) The conditions to be satisfied under this sub-paragraph are– (i) that the worker is a member of the employer's family, (ii) that the worker resides in the family home of the employer, (iii) that the worker shares in the tasks and activities of the family, and that the work is done in that context."The central issue was whether the Tribunal had had correctly interpreted the phrase “the sharing of tasks”.Each appellant worked as a live-in housekeeper/child minder for their respective employers. As the first appellant was permitted to watch television with the family, shared meals with them and spent time beyond the requirements with her duties with the children, the Tribunal held that her work was not defined as work for the purposes of the Regulations. The second appellant shared cooking and other domestic duties with her employer‟s family, and was free to decline to come on family leisure trips with them. The Tribunal held that her freedom to decline derived from her employers viewing her as part of the family, not someone whose services they wished to avail of; thus she was exempted from getting the minimum wage.The appellants appealed, arguing that the exclusionary provisions should be restricted to au pairs who lived with a family and shared domestic duties in exchange for the opportunity to improve their language skills. Thus domestic workers such as they who have been hired to assist a family with domestic tasks should not fall under the exemption.The appeals were dismissed. For the exemption to apply the work undertaken had to relate "to the employer's family household" and „the work done in that context‟ i.e. a home in which the employee was treated as a member of the family. Assessing whether the employee was treated as a family member involved examining the provision of accommodation and meals and the sharing of tasks and leisure activities. 96The Court held that the use of the word "task" instead of "work" in reg 2(2) was not important. It considered that that the word "task" was commonly used to describe domestic duties in the "family household". Thus its use did not lead to the conclusion that reg 2(2) could only be concerned with chores carried out within the home but which fell outside the scope of the paid duties of a worker. The Court further ruled that there was no requirement for the worker and the family members to split the work equally between them. A person receiving free accommodation and meals might therefore reasonably be expected to perform a larger share of tasks. What mattered was whether the work was done in a context in which the worker was treated as a family member rather than as a domestic servant. Therefore the way in which household tasks were shared and leisure activities organised was relevant.Accommodation was to be assessed in terms of how it was allocated, rather than considering the standard of accommodation provided. In one of the instant cases, the worker, who was in her thirties, sometimes shared a small room with two young boys and at other times slept on a mattress on the dining room floor. The Tribunal considered that a family member in similar circumstances would not be treated in this way. As two elder boys shared a small bedroom, but only one could sleep in a bed if both were at home at the same time, the Court disagreed with the Tribunal. Cases must be dealt with on their individual merits and accommodation is only one factor to be considered, as the Court pointed out.By addressing the statutory test, considering the manner in which tasks and leisure activities were shared and by forming a judgement on whether N and U were treated as family members, the Tribunals had included the correct considerations in their reasoning. However, the Court held that the EAT was wrong to find that the extent of the work done under the worker‟s contract of employment could be ignored when assessing whether they were treated as a family member as „There comes a point where the demands upon the worker are so onerous and extensive as to be inconsistent with the worker being treated as a member of the family.‟http://bit.ly/PDxRXP

Continue reading

We help hundreds of people like you understand how the latest changes in employment law impact your business.

Start your free trial now
Subscribe, or start free trial →
Already a subscriber?

Please log in to view the full article.

What you'll get:

  • Help understand the ramifications of each important case from NI, GB and Europe
  • Ensure your organisation's policies and procedures are fully compliant with NI law
  • 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
  • Receive free preliminary advice on workplace issues from the employment team

Already a subscriber? Log in now or start a free trial

Subscribe or start free trial
Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 12/10/2012
Recent Case Law
Q&A
How to handle it
Legal Island’s LMS, licensed to you Imagine your staff having 24/7 access to a centralised training platform, tailored to your organisation’s brand and staff training needs, with unlimited users. Learn more →