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The National Minimum Wage Exemption for Domestic Workers

01 May 2012

Although most workers of school-leaving age or older are entitled to be paid the National Minimum Wage (NMW), there is an exception (under Regulation 2(2) of the NMW Regulations 1999) where a domestic worker is being treated as a member of their employer’s family. For the exemption to apply, the worker must reside in the family home and be treated as a family member, in particular with regard to the provision of accommodation and meals (without any liability to pay) and the sharing of tasks and leisure activities.

In Jose and others v Julio and others, the Employment Appeal Tribunal (EAT) found that the exemption did apply to three foreign domestic workers employed by families, so they were not entitled to be paid the NMW.

In reaching its decision, the EAT held that when deciding whether or not the exemption applies, the worker’s position in the family must be considered holistically. Regulation 2(2) should be interpreted narrowly, with particular regard given to the provision of accommodation and meals and the sharing of tasks and leisure activities, but this does not exclude having regard to other material matters, such as the general dignity afforded to the worker, the degree of privacy they are given and the extent to which, if at all, they are exploited.

As regards the meaning of the words ‘the sharing of tasks’, this does not include work that the worker was employed to do but refers to those tasks performed by the family as a unit. It does not require that the worker share all meals, tasks and leisure activities with the family but that they are treated as a member of the family in those particular respects. Each family is different and the habits of the individual family have to be examined when determining whether or not the condition is satisfied in each particular case.

Although exploitation or mistreatment of the worker was not a feature of this case, the EAT indicated that where an employer exploits a worker’s position as a migrant worker – for example by paying them less than the agreed amount over a substantial period – this would run counter to treating them as a member of the family and the exemption would not therefore apply.

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