Yoyoh Binti Salim Udin v Firas Chamsi Pasha and Lina Chamsi Pasha

The EAT has handed down judgment in relation to the true construction of the ‘family exemption’ provided by regulation 2(2) of the National Minimum Wage Regulations 1999. Bushra Ahmed led by Jonathan Goldberg QC represented the Respondents in a three day conjoined appeal before Mr Justice Supperstone.

The Claimant was a foreign domestic worker employed in the Respondents household. 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.

1st December 2011