nambalatEAT2011
EAT National Minimum Wage Act 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the Respondents’ households. The EAT held that the work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied. Accordingly they are not entitled to be paid the National Minimum Wage.
Regulation 2(2)(a)(ii) applies if the worker is not a member of the employer’s family, but is ‘treated as such’. The exemption in reg. 2(2) is to be construed narrowly. The worker’s place within the family must be considered holistically.
Particular regard must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities. That does not exclude regard to other matters such as the general dignity with which the domestic worker is treated, the degree of privacy and autonomy they are afforded and the extent to which, if at all, they are exploited.
The ‘sharing of tasks’ does not include the work which the worker was employed to do. The tasks that are for consideration are the tasks performed by the family as a family unit. The issue is whether the worker is integrated into the family. There is no justification for importing the concept of equivalence.
Other issues
The decision in Jose that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages was not Meek-compliant. Applying the principles in Sinclair Roche and Temperley v Heard [2004] IRLR 763 the claim was remitted to a differently constituted Tribunal.
In Jose the tribunal had jurisdiction to hear a complaint of unlawful deduction of wages because the non-payment of wages was part of a ‘series’ of deductions for the purposes of s.23(3) of the Employment Rights Act 1996. Group 4 Nightspeed Ltd v Gilbert (1997) IRLR 398 applied.
In Jose and Nambalat unlawful deduction of wages in respect of holiday pay considered and judgment given on these issues.
Supperstone J
[2011] UKEAT 0596 – 10 – 0812
Bailii
National Minimum Wage Act 1998, National Minimum Wage Regulations 1999 2(2)
England and Wales
Citing:
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Arora v Rockwell Automation Ltd EAT 21-Apr-2006
EAT 10B
Unlawful Deduction from Wages – out of time
The alleged ‘deduction’ from wages was in fact an alleged underpayment some time after the termination of the contract of employment. In finding that . .
Cited – Siliadin v France ECHR 26-Jul-2005
(French Text) A 15-year-old girl, had been brought from Togo to France and made to work for a family without pay for 15 hours a day. She had been held in servitude and required to perform forced labour
Held: France had violated article 4 by . .
Cited – Meek v City of Birmingham District Council CA 18-Feb-1987
Employment Tribunals to Provide Sufficient Reasons
Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
Cited – Sinclair Roche and Temperley and others v Heard and Another EAT 22-Jul-2004
EAT Sex discrimination claim by former partners against the partnership and individual partners: direct discrimination (in both cases) and indirect discrimination (in one) found by ET.
(i) ET must, if . .
Cited – Group 4 Nightspeed Ltd v Gilbert EAT 26-Sep-1996
Repeated payments of the same type under the same contract, in this case commission, were, on the ordinary meaning of the word, part of a ‘series’ of payments. . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 01 November 2021; Ref: scu.450001