Live in Housekeepers and Minimum Wage

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]

What is the test for determining whether a domestic worker treated as a family member is ineligible for the National Minimum Wage under Regulation 2 (2) of the NMW Regulations 1999? A series of conditions are set out in Regulation 2 (2).

The test is to be approached holistically, there is no one single factor, such as the provision of accommodation, meals, or the sharing of tasks, which is decisive, says the EAT in Julio & ors v Jose & ors, a series of conjoined appeals.

Whilst the exemption is to be construed narrowly, and particular regard should be given to the various factors in Regulation 2 (2), the entire arrangement and the nature of the relationship are relevant, with consideration to the general dignity of the worker's situation.

The "sharing of tasks" relates to sharing tasks done by the family as a whole, not sharing the work done by the worker under the contract. The EAT rejected a literal approach to the requirement that the worker undertakes tasks jointly with the family, or that there should be some equivalence between the tasks done by the family and the worker, noting that every family is different and tasks are often divided up between family members.

The judgment suggests, obiter, that an employer exploiting or mistreating an NMW-exempt domestic worker (not an issue in these cases) would not be treating them "as a family member" and would, by implication, lose the exemption from the NMW, with potentially expensive consequences.