11-01-2012

When domestic workers are entitled to the national minimum wage

The Employment Appeal Tribunal has clarified when domestic workers are ‘treated as family’ and therefore not entitled to the national minimum wage.

Domestic workers were being paid less than the national minimum wage because they were within the exemption for workers who are not family members but are treated as such.

The Employment Appeal Tribunal EAT said that key issues were whether the employer:

  • Provided accommodation and meals.
  • Shared tasks (meaning tasks carried out by the family as a unit, not tasks forming part of the employee’s work) with the employee.
  • Shared leisure activities with them.

However, other matters showing that the employee was integrated into the family, such as the way in which the worker was treated (their ‘general dignity’), the privacy they were given, their degree of independence and the extent (if any) to which they were exploited, could also be relevant. For example, specific factors in these cases, showing that the workers were treated like family members, included:

  • The family PC and printer were kept in one worker’s room. When family members printed documents from their laptops, and went to collect them, they always knocked if she was in the room or the door was closed, as they would have done with a family member.
  • One worker was promised £800 per month net, as wages, but was never actually paid this amount. The fact she did not complain was evidence she was ‘fully integrated’ into the family.
  • Some workers ate with the family from time to time, watched TV with them, and were invited on family events. These were evidence of integration (even if they refused the invitations to family events).
  • Some workers spent time with the children of the family, beyond their contractual obligations.
  • When one host family moved, the new house was much more cramped. As every family member was living in more cramped conditions too (and one of the children had to share a room for six months), this was evidence of integration into the family.

The EAT rejected the ‘equivalence’ approach, which would have required that the worker and family members carry out roughly the same tasks before the workers was treated as a family member for this purpose. It said every family was different in the way it split tasks between family members, so that ‘equivalence’ was only one way families divided up domestic tasks.

Recommendation

Households employing live-in domestic workers need to make sure they are truly integrated into the family before relying on the exemption from the national minimum wage rules for those ‘treated as a member of the family’.