Nambalat v Taher and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lady Justice Black,Mr Justice Bean |
| Judgment Date | 05 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1249 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: A2/2012/0008, A2/2012/0011, A2/2012/0009 |
| Date | 05 October 2012 |
[2012] 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
and
Mr Justice Bean
Case Nos: A2/2012/0008, A2/2012/0011, A2/2012/0009
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
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.
The Statutory Framework
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."
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