Background:

The claimant was a domestic worker in the respondent’s home from 2005 to 2013.  The National Minimum Wage Regulation 1999 (Regulation) outlined that such domestic workers were exempt and therefore not entitled to the minimum wage.  This was challenged on the grounds that the Regulation was indirectly discriminatory against women and contrary to EU law.

Outcome:

The Tribunal, at first instance, held that the Regulation was indirectly discriminatory on the grounds of sex, and it was not a proportionate way in achieving the aim which related to a live-in worker being treated as a family member.  The Tribunal further concluded that the Regulation was contrary to the right to equal pay under the Treaty on the Functioning of the European Union (TFEU), Article 157.  The respondent appealed that decision.

The appeal was rejected by the EAT.  They held that the Regulation did put women at a disadvantage compared to men.  Furthermore, they stated that Article 157 of the TFEU would apply where the unequal pay was as a result of indirect discrimination from a legislative provision.  The argument that the Regulation was not concerned with equal pay between men and women was not a good reason for allowing it to continue.

Practical Guidance for Employers:

This case demonstrates the application of anti-discrimination laws from an EU perspective are applied where it is directly effective meaning that it takes precedence over the domestic regulations.  In this situation, it means that the national minimum wage exemption for domestic workers could not be sustained in light of the indirectly discriminatory treatment of women.

A copy of the full case is available here.