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.
Judges:
Supperstone J
Citations:
[2011] UKEAT 0071 – 11 – 0812
Links:
Jurisdiction:
England and Wales
Employment
Updated: 01 October 2022; Ref: scu.450002
