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Work Rights in the Nursery: Au pairs entitled to the NMW (but in respect of which hours?)

04.01.21

The employment tribunal has disapplied the “family worker” exemption, in effect holding that au pairs and other domestic workers who live in the home are entitled to the protections of the National Minimum Wage (“NMW”) regime. If this tribunal decision stands, it gives rise to another significant question: which hours should count towards the NMW for domestic workers?

In Puthenveettil v Alexander and George and others 2361118/2013 an au pair (supported by the Anti-Trafficking and Labour Exploitation Unit) successfully argued that the family worker exemption provision (in this case regulation 2(2) National Minimum Wage Regulations 1999) was indirectly discriminatory and contrary to the EU principle of equal treatment in relation to pay.

Straightforwardly, the tribunal found that the exemption 1) affects mainly women and 2) thereby put women at the disadvantage of not being entitled to the NMW.

The real battleground came at the next stage: could the discriminatory effect be justified as proportionate means of achieving a legitimate aim? The legitimate aims relied upon were:

  • Reflecting the unusual working relationship which exists when a live-in worker is or is treated as a member of the family and his or her work is done in that context; and/or
  • Encouraging and/or not discouraging parents from seeking to return or from returning to work by imposing financial restrictions which may be unaffordable or might otherwise act as a deterrent.

The Secretary of State had originally indicated an intention to participate in these proceedings in relation to this issue. However, in the event the Secretary of State decided not to participate and the First and Second Respondents were faced with the unenviable task of addressing these broad points of policy alone. They were (perhaps unsurprisingly) unable to present compelling evidence as to either which aims were actually pursued by the legislative regime or the proportionality of the same. The tribunal concluded that the exemption was not proportionate means of achieving a legitimate aim, and was therefore indirectly discriminatory.

The tribunal applied the general principle of non-discrimination as per Article 157 TFEU, which is directly effective and remains part of domestic law during the withdrawal period (see s.5 European Union (Withdrawal) Act 2018). Applying this principle, it held that there was no purposive reading of the provision that would make the exemption compatible with EU rights, and accordingly the exemption instead fell to be disapplied and rendered ineffective. The future of this point on an EU rights basis is more uncertain, although as matters stand the transition of existing EU law into domestic law would preserve the point.

The tribunal noted that “as for any wider disapplication, this is a tribunal of first instance and its decision is not binding on other courts or tribunals, although persuasive to some. It is therefore possible that a different conclusion could be produced in another tribunal, particularly on a case with different facts”. It seems doubtful whether the facts of a different domestic worker’s working arrangements could really prompt a different conclusion; the real question would appear to be whether in another case, the Secretary State (or perhaps another interested party) would seek to participate and present a full evidence base regarding the initial and ongoing justification for the exemption. On the basis of the evidence presented in this case, however, it seems that any party seeking to do so would face a significant challenge (and an attempt to present evidence on appeal which the Secretary of State specifically declined to present at first instance would seem unlikely to be welcomed).

This case was brought under the 1999 Regulations, but the family worker exemption is substantially re-enacted as regulation 57 National Minimum Wage Regulations 2015. Although the tribunal therefore made no decision in respect of the 2015 provision, it gave every indication that it would anticipate the conclusion being the same in respect of that provision (noting that there had been a number of opportunities to reconsider and record the basis for the exemption before the 2015 Regulations which appeared not to have been taken). The tribunal considered that such missed opportunities were likely to make it difficult to establish that the exemption in the 2015 Regulations was proportionate means of achieving the aims in question. No doubt in any challenge under the 2015 Regulations Respondents (and perhaps any interveners) will be alive to the guidance given in this decision as to the type of evidence the tribunal would have expected to see on this point.

The NMW: but for which hours?

The tribunal must now calculate the Claimant’s entitlement to the NMW, and if the tribunal’s decision stands lawyers and tribunals across the jurisdiction will making these calculations in respect of many more domestic workers. This exercise may not be as simple as it would at first seem.

Those assessing claims or potential claims by domestic workers will await with interest the judgment of the Supreme Court in Tomlinson-Blake v Royal Mencap Society. In that case, a care worker argued that hours for which she slept on the premises, with the potential to be woken on occasion to care for a client (on the facts of her case, she was woken on around six occasions in sixteen months), should attract the NMW. If this argument succeeds, might it apply just as well to an au pair sleeping in a family home, woken on occasion by or to look after a child? Could au pairs, too, claim to be working while asleep?

There is additionally the question of the proper classification of the hours of work and whether, if Time Work, the exclusion under Reg 32 (2015 Regs) of time spent waiting to work at home would be engaged. The decision in Tomlinson-Blake may resolve this question if the Appellants are successful.

For domestic workers all will, of course, depend on the precise factual circumstances in question, which are likely to be more varied and less well documented than those in the far more professionalised and regulated care sector. As parties, lawyers and tribunals grapple with the question of which hours domestic workers may rely upon for NMW purposes, the evidential challenges seen in the Puthenveettil case thus far may well be only the beginning.

 

David Reade QC and Georgina Leadbetter appeared alongside Niran de Silva for Royal Mencap Society in Tomlinson-Blake v Royal Mencap Society, instructed by Simons Muirhead & Burton.

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