The original Claimant in this case was a domestic worker who had worked in the Respondents' home between 2005 and 2013. In 2013 the Claimant commenced claims against the Respondents of unfair dismissal and unauthorised deductions from wages. The Claimant pursued the unauthorised deduction from wages claim relying upon the level of pay of the national minimum wage. Her contractual rate of pay was £110 per week rising to £120 per week in 2008. The Respondents relied in defence upon the “family worker exemption” contained in Regulation 2(2) of the National Minimum Wage Regulations 1999 (“Reg 2(2)”). The Claimant argued that Reg 2(2) was unlawful and should be disapplied. The ET concluded that Reg 2(2) did apply to the Claimant’s employment and that she was therefore not entitled to payment of the national minimum wage. After an appeal to the EAT the matter was remitted back to the ET to consider three main issues of the lawfulness and disapplication of Reg 2(2); the number of hours of housework performed by the Claimant; and whether that was voluntary, or contractual as a matter of custom and practice or otherwise. The ET disapplied regulation 2(2) of the National Minimum Wage Regulations 1999 (the 1999 Regulations) and held that the Claimant was entitled to the national minimum wage. The ET found that the family and domestic worker exception in regulation 2(2) was indirectly discriminatory against women and was not a proportionate means of achieving legitimate aims. The ET also decided that regulation 2(2) was contrary to the Claimant’s directly effective EU law right under article 157 of the Treaty on the Functioning of the European Union (TFEU) and held that article 157 applies to unjustified indirect discrimination. The ET was bound by the former section 2(1) of the European Communities Act 1972 (“the 1972 Act”) to disapply regulation 2(2). The Respondents appealed.

The EAT dismissed the appeal. The ET had correctly held that the claimant was entitled to the national minimum wage. The tribunal had rightly disapplied regulation 2(2) of the National Minimum Wage Regulations 1999. The ET was entitled to find that the family and domestic worker exception in regulation 2(2) was indirectly discriminatory against women and was not a proportionate means of achieving legitimate aims. The ET had correctly decided that regulation 2(2) was contrary to the claimant’s directly effective EU law right under article 157 of the Treaty on the Functioning of the European Union. It had correctly held that article 157 applies to unjustified indirect discrimination. The ET was bound by the former section 2(1) of the European Communities Act 1972 to disapply regulation 2(2). The Respondents were not correct in their contentions that (i) article 157 did not apply to the claimant’s case because she had not brought an equal pay claim using a male comparator (ii) she could not do so because there was no “single source” body responsible for the pay and conditions of both claimant and comparator; and (iii) article 157 is only concerned with eliminating disparities in pay between the sexes and not, as the 1999 Regulations are, with ensuring fair wages.