Minimum Wage Exemption for Domestic Workers found to be indirectly discriminatory

Under UK law, domestic workers are specifically excluded from several key worker protections. For example, under the National Minimum Wage (NMW) legislation, some domestic workers are not entitled to NMW. Workers who live in their employers’ family home, who are treated “as a member of the family” in relation to accommodation and meals, and whose work is done in the context of the “tasks and activities of the family”, do not have that work counted as “work” for the purpose of the NMW. 

A number of employers have relied on this exemption when employing domestic staff, including in particular au pairs. However, the exemption is now under challenge. 

In the recently published judgment in the case of Puthenveettil v Alexander and George and others, the reconstituted Tribunal found that the family worker exemption is indirectly discriminatory and, in the absence of a legitimate aim, should be disapplied. The Claimant in that case successfully argued that, as domestic workers are generally women, more women are precluded from earning NMW and are therefore placed at a particular disadvantage when compared to men. The case has a long and chequered history, with the claim first lodged in 2013. It was subject to various appeals and reviews, with the challenge backed by the Anti Trafficking and Labour Exploitation Unit.  

The judgment is a first instance decision and so is not binding on another court or tribunal. However, if the decision stands, it does give rise to another significant question: which hours should count towards the NMW for domestic workers? For example, should a worker be paid for hours during which he or she sleeps on the premises, if there is the potential to be woken on occasion to care for a client? And should a worker be paid for time spent waiting to work? These questions are being considered in the context of a care worker, in the case of Tomlinson-Blake v Royal Mencap Society, and we await the judgment of the Supreme Court with interest. 

We will keep you updated as the case law in this area develops.