Nambalat v Taher & Anor: Udin v Pasha & Ors  EWCA Civ 1249
Conjoined appeals concerning the application of the National Minimum Wage Regulations to domestic workers. Appeals dismissed.
Both these appeals concerned the application of regulation 2(2). Both claimants were domestic workers who were provided with some pay, accommodation and meals. In the separate, unrelated ET proceedings both had been found not to be entitled to the the NMW, as they fell within the exemptions provided for. However, for the second claimant, a majority found that a change in accommodation had meant that the exemption no longer applied as the accommodation was not that which a family member would have enjoyed.
In this judgment Pill LJ identified the central issue as whether the claimants were treated as members of the family 'in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities" (regulation 2(2)(a)(ii)). He then reviews the evidence before the ET and the conclusions of the EAT before concluding that both claims could be dismissed as they fell within the regulation 2(2) when read as a whole. He also found that the majority had erred in their conclusion about accommodation as there was no need to provide accommodation of a particular standard. ______________________
Case Nos: A2/2012/0008, A2/2012/0011, A2/2012/0009
Neutral Citation Number:  EWCA Civ 1249
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE PILL
LADY JUSTICE BLACK
MR JUSTICE BEAN
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Ms T Nambalat (First Appellant)
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Mr Taher and Mrs S Tayeb (First Respondents)
Ms Y Binti Salim Udin (Second Appellant)
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(1) Mr F Chamsi-Pasha; (2) Mrs L Chamsi-Pasha (3) Mr Y Kaylani (Second Respondents)
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Mr Peter Oldham QC and Mr Julian Milford (instructed by North Kensington Law Centre) for the Appellants
Ms Rehana Azib (instructed by Evans Dodds Solicitors) for the First Respondents
Mr Jonathan Goldberg QC and Ms Bushra Ahmed (instructed by Goldkorn Mathias Gentle Solicitors) for the Second Respondents
Hearing date : 5 July 2012
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Lord Justice Pill :
- These are appeals against a judgment of the Employment Appeal Tribunal ("EAT"), Supperstone J presiding, on 13 December 2011 whereby appeals by Ms T Nambalat ("the first appellant") and Ms Y Binti Salim Udin ("the second appellant") against decisions of Employment Tribunals were resolved. Save in respect of holiday pay, the appeal of Ms Nambalat ("the first appellant") against a decision of an Employment Tribunal sitting at Watford on 17 August 2010 was dismissed. An appeal by Mr and Mrs Chamsi-Pasha ("the second respondents") against a majority decision of an Employment Tribunal sitting at London Central on 28 October 2010 was allowed and a cross-appeal dismissed.
- The issue in the appeal turns on the Employment Tribunals' findings under regulation 2(2) of the National Minimum Wage Regulations 1999 ("the 1999 Regulations"). In each case, the Tribunal held that the work done by the appellants for their respective employers was work to which regulation 2(2) of the Regulations could apply. The Watford Tribunal held that the first appellant was not entitled to be paid the National Minimum Wage ("NMW"). The Tribunal at London Central held that, to the extent explained in its reasons, the second appellant's complaint of unauthorised deductions from wages based on the NMW legislation was well founded. A separate issue arose in that case relating to accommodation. The EAT thus dismissed the first appellant's appeal and allowed that of the second respondents so that both appellants were held not to be entitled to be paid NMW.
- The appeals raise issues as to the eligibility of domestic workers for NMW. The first appellant worked for Mr Taher and Mrs S Tayeb ("the first respondents") and the second appellant worked for the second respondents. Mr Y Kaylani had been debarred from taking part in the proceedings.
- Section 1 of the National Minimum Wage Act 1998 ("the 1998 Act") provides, in so far as is material:
"(1) A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.
(2) A person qualifies for the national minimum wage if he is an individual who—
(a) is a worker;
(b) is working, or ordinarily works, in the United Kingdom under his contract; and
(c) has ceased to be of compulsory school age.
(3) The national minimum wage shall be such single hourly rate as the Secretary of State may from time to time prescribe."
- Section 2 of the 1998 Act confers on the Secretary of State power to make regulations providing for the determination of the hourly rate for NMW but section 2(8)(b) prevents the Secretary of State from making regulations which differentiate between sectors of employment in relation to NMW. Section 3 empowers the Secretary of State to exclude certain classes of person from the right to NMW. The power can be exercised in relation to persons who have not attained the age of 26 or to persons in limited specified categories. Section 17 provides for enforcement of the entitlement to NMW and includes a provision whereby workers who are unlawfully paid less than the NMW may claim not only the shortfall but an uplift as well. Section 28 applies a presumption that the individual qualifies for NMW unless the contrary is established.
- Regulation 2(2) of the 1999 Regulations, made by the Secretary of State under the 1998 Act, provides:
"(2) In these Regulations 'work' does not include work (of whatever description) relating to the employer's family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied.
(a) The conditions to be satisfied under this sub-paragraph are–
(i) that the worker resides in the family home of the employer for whom he works,
(ii) that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities;
(iii) that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and
(iv) that, had the work been done by a member of the employer's family, it would not be treated as being performed under a worker's contract or as being work because the conditions in sub-paragraph (b) would be satisfied.
(b) The conditions to be satisfied under this sub-paragraph are–
(i) that the worker is a member of the employer's family,
(ii) that the worker resides in the family home of the employer,
(iii) that the worker shares in the tasks and activities of the family,
and that the work is done in that context."
- For the appellants, Mr Oldham QC, who did not appear before the Employment Tribunals, submitted that the statutory context requires that a narrow construction be given to the exclusionary provisions in regulation 2(2). The power to exclude from the right to NMW conferred by section 3 of the 1998 Act is a limited one as illustrated by the provision as to burden of proof (section 28), the forbidding of differentiation between different sectors of employment (section 2(8)(b)) and the statutory purpose of avoiding discrimination. Domestic workers are likely to be female and from ethnic minorities. The exclusion is intended to apply to au pairs, generally young women who visit the United Kingdom to improve language skills and who live with a family, are treated as a part of it, and share the family's tasks in exchange. It should not readily be extended to migrant domestic workers the purpose of whose employment is to relieve the family of most of its household tasks. They are particularly vulnerable to exploitation.
- Mr Oldham adopted the view of the sub-paragraph expressed in Harvey on Industrial Relations and Employment Law, paragraph 178:
"Particular attention should be paid to ensure that the au pair relationship is not a simple shield for exploitation and that the relevant individual is genuinely being treated as a member of the family unit."
- The central issue in each case is "whether the appellant is treated as [a member of that family] in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities" (regulation 2(2)(a)(ii)). The 'sharing of tasks' is crucial, it was submitted, though Mr Oldham also of course relied on the finding in his favour at London Central on the 'provision of accommodation'. I consider that topic under a separate heading.
- Mr Oldham submitted that the tasks which need to be shared to come within the exclusion are the tasks included within the work that a worker does which is related to the employer's family household. A broad equivalence is to be expected between the tasks to be done by the worker and by members of the family. The sharing is not to be confined to tasks outside the scope of the worker's contract. If that were right, an employer could bring himself within the exemption by ensuring that the worker is contracted to do as much of the work relating to the family household as possible. That would leave very few tasks for the family itself to share in, so that condition (ii) could easily be satisfied. That would be absurd, it was submitted.
- Mr Oldham criticised the EAT's construction of the words "the sharing of tasks". The EAT stated, at paragraph 45:
"In our view the tasks that are for consideration are the tasks performed by the family as a family unit. Reg.2(2)(a)(ii) requires the worker to be treated as a family member. The issue is whether the worker is integrated into the family. What work the worker does under his or her contract of employment is not relevant for the purposes of considering whether this condition is satisfied."
- At paragraph 46, the EAT rejected the submission that there must be "an equivalence in terms of the tasks performed by the worker and the employer and/or family". It had been submitted to the EAT that "if there was not equality between the amount of work done by the worker and by members of the family then that was strongly suggestive that the worker was not being treated as a member of the family." The EAT stated:
"In our view there is no justification for importing the concept of equivalence into the clear words 'the sharing of tasks'. Regulation 2(2)(a)(ii) does not require the worker to share all meals, tasks and leisure activities with the family but rather that the worker is treated as a member of the family in those particular respects. Each family is different. When considering whether the condition is satisfied the habits of the individual family in relation to the taking of meals, the sharing of tasks and leisure activities have to be examined."
- Referring to those paragraphs, Mr Oldham accepted that the Employment Tribunal's focus should be on the particular family and that family circumstances will differ. The sharing of tasks must be such, it was submitted, that it was clear that the worker was being treated as a member of the family. The Employment Tribunal should consider whether there is a broad parity of treatment as between the worker and members of the family. That was a question of fact and degree. The question for this court was whether the Employment Tribunals had applied the correct test to the facts found.
- Mr Oldham submitted that the correct test to apply to the sharing of tasks had not been applied. The test requires that the sharing of tasks includes the sharing of those tasks included within the worker's contract. Had it been applied to the facts found, the only rational conclusion was that the appellants did not come within the exemption because the condition required by regulation 2(2)(a)(ii) was not satisfied.
- It should be noted that there can be an appeal from an Employment Tribunal only on a point of law. If a Tribunal has erred in law, the EAT (and this court) can correct it. The task of this court is to consider whether the Employment Tribunal has erred in law. In performing that duty, it will of course pay respect to the EAT's view of the law but it is the Employment Tribunal's application of the law on which judgment has to be passed.
- The first appellant was employed by the first respondents from November 2000 until August 2009 at a starting salary of £180 per week which increased by stages to £250 per week from June 2005. Terms and conditions of employment were not given to her. The Tribunal found that, had they been given, the first appellant's job title would have been 'general housekeeper and child minder'. The Employment Tribunal found that the first respondents did not dismiss the first appellant from their employment. She had reasons of her own for treating the employment as at an end.
- The Tribunal had several issues to consider, including leave entitlement during the last year of the employment, race and age discrimination and resignation or dismissal, as well as the NMW issue. The Tribunal carefully set out the evidence given and posed four questions at paragraph 18, the relevant ones being "(b) was she treated as a member of the family?" and "(d) did her work consist of sharing in the tasks and activities of the family?" Detailed findings were made.
- There were four distinct phases in the employment, the position changing with the age of the children of the family and whether Mrs Tayeb was working. The first appellant was from India and, during the early years of her employment, was concerned about leaving the UK because she did not then have indefinite leave to remain here. That changed in the later years and in 2005, the first appellant took a 9 week holiday in India, the respondents paying for her flight. There were similar, though shorter visits in 2006, 2007 and 2008. The first appellant had Sundays off and an afternoon break of 1½ hours.
- Before expressing its general conclusions, the Tribunal considered the extent to which and the circumstances in which the first appellant shared meals and social life with the family. In assessing whether she was treated as a member of the family, the Tribunal appears to me to have focused on the appropriate issues. It was noted that, on occasions, she offered to give Mr Tayeb a head massage and he accepted her offer. During the course of the morning, the first appellant would be involved in making beds, tidying and hoovering. She helped to prepare a light midday meal for herself and Mrs Tayeb and would be involved in assisting with the preparation of the evening meal and helping to serve it. She had responsibilities for dealing with the youngest child, particularly when he was very young. She was involved with Mrs Tayeb in clearing up after the evening meal.
- The Tribunal summarised its findings as follows:
"21. As regards the conditions in Regulation 2(2) National Minimum Wage Act Regulations 1999, it is not in dispute that the claimant resided in the family home. It is also not in dispute that there were no deductions from her pay in respect of her accommodation. The questions we have to decide are whether the claimant was treated as a member of the family and whether her work consisted of sharing in the tasks and activities of the family.
- Dealing with the first of those matters, we noted that the claimant's room was a room that the family did use, albeit to a limited extent. The doors were generally left open. Some meals were taken together with the claimant and members of the family but the claimant was free to take all meals with the family, although it was her decision not to, most of the time. There was sharing of tasks, in particular cooking and clearing up after meals. Otherwise, the claimant did the bulk of the work. As regards leisure activities the claimant shared these with the children to some extent. She was invited to the cinema and to family occasions although she declined. She watched television with some members of the family.
- As regards the sharing of task and activities of the family, she was involved in cooking and preparation of the meals. Time was spent with the children, especially Husain, which went beyond the scope of her duties, or watching television or clearing up after meals.
- In our judgment, for those reasons, all of the conditions are satisfied. That has the consequence that her work is not defined as work for the purposes of the National Minimum Wage Act."
- The Tribunal in this case also had several issues to consider. It rejected the second appellant's claims of unfair dismissal and race discrimination but, by a majority, found in her favour, the Chairman dissenting, that her complaint under the NMW legislation was in part well founded. Members of the Tribunal were unanimous that, save as to accommodation, the requirements of the exemption were satisfied. The majority view, at paragraph 214, was that the standard of accommodation afforded to the second appellant at two of the properties in which the family lived was not such that she could be regarded "as having been treated as a member of the family when living at those addresses." There had therefore been unauthorised deductions from wages during her time at those two addresses.
- The hearing before the Tribunal was an unhappy one. It lasted for 19 days and the Tribunal, in its determination, was very critical of the way in which the case on each side was conducted. Counsel who appeared for the first appellant no longer appears. In the determination, the Tribunal have expressed their serious criticisms in a measured way. The criticism did not extend to either Ms Ahmed, junior counsel for the second respondents, or Miss Gibbs, solicitor for the second appellant. Their conduct was commended by the Tribunal.
- The Tribunal's task was made very difficult by the conduct complained of. When considering the legal point before this court, we have not found it necessary to investigate the conduct. It was not investigated by the EAT and we have not been asked to do so. I would, however, commend the Tribunal in succeeding, notwithstanding counsels' conduct, in maintaining a conscientious and objective approach to the evidence and to the issues before it, as demonstrated in their detailed judgment.
- The second appellant is an Indonesian national, born in 1970. The Tribunal described her story as a harrowing one which could only inspire feelings of sympathy and compassion. The Tribunal found, however, that the second appellant had "settled on the desperate strategy of making a litany of false and exceedingly serious claims against individuals who have always treated her kindly and with respect". She had caused immense distress to the second respondents' family, threatened untold harm to their reputations and exposed them to colossal legal costs. The Tribunal described them as the victims of her behaviour. She had contrived a false case and given grossly untruthful evidence to support it. Referring to a charity which supports migrant workers, the Tribunal also mentioned the "unduly credulous support of those who have sought to help her".
- Mr Oldham rightly submitted that the second appellant's lack of credibility did not necessarily defeat her claim and analysis of the domestic arrangements was required. It appears to me that the Tribunal scrutinized the situation most carefully. Its findings of fact are not challenged.
- The Tribunal considered the evidence about domestic circumstances in detail. I refer to some of their findings:
"[The second respondents] gave unchallenged evidence that the house was cleaned regularly by an employee of Mr Chamsi-Pashas' company and that no such duties fell to Ms Salim Udin. Cooking, washing up, clothes washing and other sundry tasks were shared between the adults in the household, including Ms Salim Udin." (paragraph 124)
"As for trips to Huddersfield, the respondent's evidence was that these were holidays; Ms Salim Udin travelled there as a member of the family, helping out by looking after the smaller children and contributing to other household tasks." (paragraph 145)
"We find that the Chamsi-Pashas' descriptions of the sleeping accommodation and bathroom and toilet facilities at the various residences was true and accurate, as was their outline of the pattern of daily life and Ms Salim Udin's working routines." (paragraph 165)
"So far from members of the family being hostile towards her, we find that she was treated kindly, affectionately and with respect." (paragraph 166)
"We accept the evidence of Mrs Chamsi-Pasha that routine household tasks were shared. If she brought shopping home, she and Ms Salim Udin would put things away together. If Ms Salim Udin was cooking the evening meal, she might help with food preparation or tidying away." (paragraph 168)
"Mr and Mrs Chamsi-Pasha included her without differentiation from the members of the family in planned outings and holidays and on ad-hoc visits to the park or to cafes or restaurants." (paragraph 170)
Reference was made to the shared Muslim religion which, in the Tribunal's view, "served to some extent as a levelling force". (paragraph 4)
- The Tribunal explained in detail why it rejected the evidence of the second appellant and expressed its conclusions at paragraph 213:
"We tentatively volunteer a few additional observations of our own. In the first place, it seems to us that the concept of being treated as a member of the family must entail a degree of involvement. The individual must be more than a guest. She (or he, but for brevity we will use the feminine only) must be a member of the household. She must be included to some degree in family life. This involvement must entail taking part, or at least being expected or invited to take part, in tasks and activities which fall outside the scope of the work for which she is employed. It also involves her sharing the family's food and accommodation, which must extend to sleeping accommodation, bathing and washing facilities, kitchen and living space. In our view the notion of being included as a member of a family does not require parity of treatment with family members, but a significant difference in the standard of facilities or services made available to the domestic worker on the one hand and the rest of the household on the other may argue against the conclusion that she is being treated as a family member. On the other hand, we note that the Regulations refer to the provision, not sharing, of meals and we do not read them as requiring that meals be eaten together, or even that the same meals be taken. (But clearly a worker who ate different meals from the family would be less likely to be seen as being treated as part of the family.) The concept of sharing tasks, must, it seems to us, be interpreted in the context of what it is that the worker is employed to do. If a primary employment duty of the worker is to get children ready for school in the morning, the exemption clearly does not depend on that task being shared with other members of the family. To put it another way, the domestic worker does not need to share her role with other members of the family in order to fall within the exemption. It seems to us that the reference to 'tasks' is aimed at routine household jobs and chores outside the scope of the worker's employment which one would expect members of a family to share as a matter of course."
- At paragraph 216, the Tribunal added:
"While we differ on the question of accommodation, we are united in regarding the language of the exemption as being otherwise satisfied. We have found that meals were shared, even though they were rarely taken together. We have accepted the evidence of Mrs Chamsi-Pasha that there was a sharing of routine household tasks. And Ms Salim Udin was involved in leisure activities. These took place at weekends: visits to the park and further afield, outings to places of interest, visits to friends and family, trips to the cinema and to local restaurants and local cafes. She was not taken, as she suggested, so that use could be made of her services in looking after the children, but because she was seen as part of the family and it was natural that she should be asked. The fact that she could, and sometimes did, decline invitations to go out with the family, reinforces the Respondents' case that she was treated as a member of the family."
The Tribunal had found that, on occasions, the appellant elected to stay at home with one of the children.Respondents' submissions
- For the first respondents, Ms Azib relied on the Employment Tribunal's findings of fact as demonstrating that the condition in regulation 2(2)(a)(ii) was satisfied. They demonstrated an integration into the family. The required benefits of accommodation and meals were provided, and a salary was paid, albeit at a level below NMW. Ms Azib also put the example of a household with a working wife who cannot fully take part in household work. The benefit of the exemption should not be denied to those who need it most, she submitted. The effect of the appellants' submissions would be that employers were deprived of any real benefit because they would both be paying someone to undertake the work and would still be required to undertake a part of it themselves.
- Ms Azib accepted that the worker must be treated as a member of the family in the respects identified in regulation 2(2)(a)(ii). The dignity with which the worker is treated and the degree of privacy and autonomy afforded to them is highly indicative of whether an individual is genuinely treated as a member of the family. The question is whether the worker is genuinely treated as a member of the family in every other respects such as spending time with the family and engaging in family outings and occasions. That elevates the status of the worker within the family beyond that of a mere employee.
- For the second respondents, Mr Goldberg QC submitted that it was necessary to look at the actual family and its circumstances. In a family with an Asian background, women may customarily do more of the household work. The test is whether the worker is treated as a member of the family and the manner in which tasks are shared throws light on that. If the employer does nothing, there is no sharing. If the mother of the family shares household tasks generally with the worker, that may help to demonstrate family life. The Tribunal rightly considered whether the second appellant's work was done in the context of family membership.
- The accommodation issue in Ms Salim Udin's case arose because of a house move. The Tribunal described the accommodation at paragraphs 73 and following. The second respondents had five children. Between 2004 and 2007, the family lived in a very large flat in Portland Place W1 but, because of reduced family circumstances, it became necessary to 'downsize' and the family moved to an address at Hallam Court. In September 2008, they moved to a maisonette in Thurloe Street and, relative to Portland Place, conditions in the other properties were cramped. The second respondents considered it necessary, even in difficult times, to keep up appearances and to retain a Central London address.
- The majority view and the Chairman's view on accommodation were set out at paragraphs 214 and 215:
"214. Unfortunately, we are unable to agree on the question whether the exemption applies here. The majority, consisting of Mr Javed and Mrs Bond, takes the view that the wording of the exemption is not satisfied. They point to the fact that Ms Salim Udin was at all relevant times a woman in her thirties. After leaving Portland Place, she was accommodated in a small bedroom in Hallam Street and likewise in Thurloe Street, sharing with the two smaller boys. And in Thurloe Street that arrangement gave way to a mattress on the dining room floor. They also point to the limited and rudimentary storage space made available for her toiletries and other possessions at Thurloe Street (photo p.160). The majority reasons that a member of the Chamsi-Pasha family in her late thirties living within their household would not have been treated as Ms Salim Udin was in terms of the standard of accommodation provided to her at Hallam Street and Thurloe Street. And if the comparison with the imaginary Chamsi-Pasha family members is invalid, the majority rests its view in the alternative on the broad proposition that the standard of accommodation afforded to Ms Salim Udin at Hallam Street and Thurloe Street was such that she cannot be regarded as having been treated as a member of the family when living at those addresses. The majority opinion is based solely on the accommodation at Hallam Street and Thurloe Street. But for this aspect, the majority conclusion would have been that the exemption was made out. Accordingly, Mr Javed and Mrs Bond consider that Ms Salim Udin is entitled to a remedy based on the national minimum wage provisions for unauthorised deductions from wages during her time at Hallam Street and Thurloe Street only.
- The Employment Judge sees the matter differently. In his view the Tribunal is not required, or indeed permitted, to reason that, since a mature female member of the family might have been better accommodated than the Claimant, the exemption fails on the accommodation ground. The question is whether Ms Salim Udin was treated as a member of the family. It seems to the Employment Judge that in the context of the relatively straitened circumstances of the family following the move from Portland Place, it cannot be said that in terms of the accommodation provided to her, Ms Salim Udin was treated otherwise than as a member of the family. At Hallam Street she (unlike Yasmine) had a bedroom. And at Thurloe Street she was provided with a bedroom too, although out of choice and with the agreement of Mrs Chamsi-Pasha, she eventually moved to the dining room. The simple fact is that there was no bedroom which Ms Salim Udin could occupy alone. The sleeping arrangements were not by any means ideal, but the entire family had to tolerate cramped conditions. As the Tribunal has found the two elder boys had to share a small bedroom in circumstances where only one could sleep in a bed if both were at home at the same time. In the Employment Judge's view, it is impossible to say that there was a qualitative difference between the standard of accommodation enjoyed by Ms Salim Udin on the one hand and the family on the other, either at Hallam Street or at Thurloe Street. The Tribunal is unanimous in its view that the provision of accommodation at Portland Place was compatible with the exemption. It seems to the Employment Judge to be erroneous to say that the consequence of Mr Chamsi-Pasha's decision to sacrifice space for location and remain in central London was that Ms Salim Udin ceased to be treated as a member of the family"
- On the view of the majority as to accommodation, it was necessary to consider the hours for which NMW could be expected. Quantum was to be determined at a future hearing.
- In each case, the EAT upheld the conclusion of the Tribunal as to "sharing of tasks and leisure activities". On the accommodation issue in the second appellant's case, the EAT, at paragraphs 56 and 57, reversed the finding of the majority in the Employment Tribunal:
"56. . . . In our view the majority erred in considering the issue of accommodation in isolation, as if there is a separate accommodation test, which there is not. When all the material evidence in relation to the issue as to whether the Claimant was treated as a member of the Respondents' family is considered holistically it is clear, in our view that she was so treated and a decision to the contrary would be perverse. We agree with the observation of the Employment Judge to whom it seemed to be erroneous to say that 'the consequence of Mr Chamsi-Pasha's decision to sacrifice space for location and remain in central London was that Ms Salim Udin ceased to be treated as a member of the family' (para 215).
- Even focussing on accommodation alone (which, as we have said, is not the correct approach), it is significant that at Hallam Street the Claimant, unlike Yasmine, the Respondent's teenage daughter, had her own bedroom. Yasmine, then aged 13, slept on a mattress in the hallway for about the first six months at Hallam Street. When her grandmother visited she put a stop to this practice, insisting that she should sleep in her uncle Talal's bedroom (para 116). As for the sleeping arrangements at Thurloe Street, these were not by any means ideal, but the entire family had to tolerate cramped conditions. The two elder brothers had to share a small bedroom in circumstances where only one could sleep in a bed if both were at home at the same time. There was no bedroom which the Claimant could occupy alone. She was provided with a bedroom which she shared with the two boys, Faysal and Zeyd, in which she had a bunk bed with a mattress. Out of choice and with the agreement of Mrs Chamsi-Pasha the Claimant moved into the dining room and slept on a roll-up mattress which was purchased for her, together with new bedding. The Respondents' evidence, which was accepted, was that the change in sleeping arrangements was made at the behest of the Claimant, who preferred to be flexible as to when she went to bed because she enjoyed watching "soaps" on television, sometimes until quite late at night (para 117). We conclude that the sleeping arrangements at Hallam Street and/or Thurloe Street could not have had the effect of the Claimant ceasing to be treated as a member of the family."
- I agree with the approach and conclusion of the EAT and the Chairman of the Tribunal. As the EAT stated, the test requires an overall approach to family membership, accommodation being only one of several relevant factors. How accommodation is allocated is likely to throw light on the general issue.
- The test is whether, in the provision and allocation of accommodation, the worker was treated as a member of the family and not whether a particular standard of accommodation was provided. The majority of the Tribunal erred in law, in my view, in requiring that the accommodation provided for the worker was of a particular standard. To consider how an actual daughter in her late thirties would have been treated was entirely speculative and the evidence does not suggest that the allocation of the limited accommodation available would have been different.
- The relevant facts are set out in the Tribunal's reasons and paragraph 57 of the EAT determination. On the Tribunal's findings of fact, as to which there was no dispute, the EAT and Chairman were correct to hold that, as regards the provision of accommodation, the second appellant was treated as a member of the family.
b) General considerations
- It is common ground that the conditions in regulation 2(2)(a)(i) and (iii) are satisfied. I will refer to (a)(iv) but the focus of the parties has been upon (a)(ii). What is clear from regulation 2(2) read as a whole is that, for the exemption to apply, the work must relate "to the employer's family household" and that "the work is done in that context", the context being that of a family household in which the worker is treated as a member of the family.
- For condition (a)(ii) to be satisfied, the worker must be treated as a member of the family. That is the central requirement. The condition requires that, when considering whether the worker is treated as a member of the family, particular regard must be had to "the provision of accommodation and meals and the sharing of tasks and leisure activities." In these cases, accommodation and meals were admittedly provided and I have expressed conclusions about accommodation. The issue is whether the 'sharing of tasks' was compatible with the appellants being treated as a member of the relevant family.
- I cannot accept the extreme propositions put by either side. I do not accept the submission of Ms Azib that, because a wife in demanding employment may be the wife most in need of domestic help, the requirements of the regulation should be construed so as to achieve an exemption. I do not consider that the use of the word 'tasks' in sub-paragraph (a)(ii), as distinct from the word 'work', with which regulation 2(2) begins, has the significance for which the respondents contend. Regulation 2(2) is concerned with whether types of work are excluded from the 'work' contemplated by the Regulations. The word 'tasks' is a word commonly used to describe domestic duties in the 'family household'. Its use does not, in my judgment, lead to the conclusion that the sub-paragraph can be concerned only with chores within the home, undertaken by family members, which fall outside the scope of the paid duties of the worker. An overall view is required and a judgment made as to whether the worker is treated as a member of the family.
- Nor do I accept, on the other hand, that there must be a broad equivalence of the work done in the house as between the worker and family members. A person receiving free accommodation and meals may be expected to perform more household duties for the family than other family members. What matters is whether the work is done in a context in which the worker is treated as a member of the family. The way in which household tasks are shared is, as the regulation recognises, an important indicator of whether the worker is treated as a member of the family. The way in which accommodation is allocated, meals taken and leisure activities organised are other indicators. It is for the Tribunal to decide whether, on the evidence, it is established that the worker is being treated as a member of the family and not as a domestic servant.
- Consideration was given at the hearing to the effect of regulation 2(2)(a)(iv). That provides an additional condition to be satisfied in order to obtain an exemption. The appellants did not seek to rely on it, their focus being on sub-paragraph (a)(ii), but concern was expressed as to its effect.
- I can read condition (iv), in circumstances such as the present, only as providing a cross-check on whether the other conditions are satisfied. It must be shown that, had the work been done by a member of the employer's family, the family member was 'sharing in the tasks and activities of the family'. That does not appear to me to add a requirement more restrictive than that already provided by (a)(ii). However, the mention of family membership does underline the basic requirement of the exemption, that is the worker being treated as a member of the family. Family businesses, a different subject, are considered in regulation 2(3) and (4). In that situation too the work must be done in a family context.
- I turn to the present cases. In the first appellant's case, I do not consider that the Tribunal's approach to the issue, or its assessment of the evidence, can be faulted. While question (d) posed at paragraph 18 (paragraph 17 above) was not entirely apt, the conclusions expressed in later paragraphs did address the statutory test and adopt the correct approach to it. In my judgment, the Tribunal reached a conclusion it was entitled to reach. The central question is whether the first appellant was treated as a member of the family. That, in the Tribunal's view, she was so treated emerges from paragraphs 22 and 23 of the reasons. In forming a judgment on that issue, particular consideration needed to be given to the sharing of tasks and leisure activities. Such consideration formed a part of the reasoning.
- In the second appellant's case, the approach of the Tribunal at paragraphs 215 and 216 was appropriate and complied with the statutory requirement, save as to the majority's approach to accommodation, already considered. Subject to that, an overall view was taken as to whether the first appellant was treated as a member of the family, particular attention being given to the issue at the centre of the present appeals, the sharing of tasks. Read alone the last sentence of paragraph 213 (paragraph 27 above) might suggest a different approach but, in context, it did no more than recognise that some tasks being the exclusive responsibility of the worker does not prevent compliance with condition (a)(ii). While I do not accept that, when making the overall assessment, the extent of duties exclusively done by the worker can be ignored the Tribunal has not erred in its assessment of the particular family situation. At paragraph 216, the Tribunal plainly had in mind the requirement that the first appellant be treated as a member of the family. The reasoning is sufficient and the Tribunal was entitled to reach the conclusion it did.
- As already stated, it is the lawfulness of the decisions of the Employment Tribunals which needs to be considered. However, the EAT's approach at paragraph 46, (paragraph 12 above), was appropriate, as was the statement at paragraph 45 that "The issue is whether the worker is integrated into the family." If, however, in the last sentence of paragraph 45, (paragraph 11 above), the EAT was expressing the view that, in assessing whether a worker is treated as a member of the family, the extent of the work done by the worker under the contract of employment can be ignored when making the required overall assessment, I respectfully disagree. There comes a point where the demands upon the worker are so onerous and extensive as to be inconsistent with the worker being treated as a member of the family. It cannot be argued that condition (a)(ii) is satisfied on the ground that such few tasks as are left outside the employment are shared between members of the family. That would be an abuse of the NMW exemption. On the findings of each Tribunal, there has been no such abuse in this case.
- In each case, it is for the Employment Tribunal to assess, having regard in particular to the factors stated in (a)(ii), whether the worker is treated as a member of the family. The Tribunal must keep in mind that it is for the employer to establish that the conditions in regulation 2(2) are satisfied and that onerous duties may be inconsistent with treatment as a member of the family. Tribunals will need to be astute when assessing whether an exemption designed for the mutual benefit of employer and worker is, or is not, being used as a device for obtaining cheap domestic labour.
- That has not happened in either of these cases and I would dismiss the appeals.
Lady Justice Black :
- I agree.
Mr Justice Bean :
- I also agree.
Published: 06/10/2012 12:21