Jack Feeny looks at the exemptions that apply under the National Minimum Wage Regulations

There has recently been a charity-backed challenge to the domestic worker exemption contained in regulation 2(2) of the National Minimum Wage Regulations 1999. There is a concern that the provision that was aimed at excluding genuine au pairs who temporarily stay with a family is being used to exploit foreign domestic workers who have often moved to the UK with their employer.

In October the Court of Appeal handed down its judgment in Nambalat v Taher & Udin v Chamsi-Pasha [2012] EWCA Civ 1249 in which it analysed the scope of the exemption and ultimately upheld the Employment Tribunal’s judgment in both cases that the claimants fell within the exemption.

The exemption itself requires that accommodation within the family home is provided without deduction and that the worker is treated as a member of the family in particular in respect of sharing of tasks and leisure activities and provision of meals.

There was a particular focus on what work was excluded from the “sharing of tasks” when analysing the true position. It was argued by the claimants that the household tasks must be shared equally by the family members including the worker otherwise it would be permissible to allocate the majority of tasks to the worker as long as the family members shared some of the minor chores. Conversely, the defendants argued that there would be no point employing a worker if the family still had to undertake an equal share of tasks.

The Court of Appeal rejected both arguments. It said that whether the worker falls within this exemption depends on the facts of each case. The question the Tribunal must ask itself is whether the work is performed within the context in which the worker is treated as a member of the family. In doing so, the Tribunal should consider whether meals are provided, although not necessarily shared, and the worker has a free choice of whether to join in with leisure activities. If the worker undertakes the majority of household tasks then this will point towards exploitation but it will not necessarily be determinative.

The Court of Appeal therefore expressly declined to formulate a prescriptive test for deciding whether a worker falls within the exemption. Each case must depend on its own facts and specifically whether the overall treatment of the worker can be considered akin to that of a family member. It is thought that the charities that backed this appeal will now seek to challenge the regulation itself on the basis it is incompatible with European legislation.