Domestic workers living as part of the family for whom they work can fall under the “au pairs and nannies” exception to the right to be paid minimum wage. Other exceptions listed in the Regulations include members of the armed forces, share fishermen, prisoners and, fairly obviously, volunteers and the self-employed. Of course, interns or trainees are not excepted and this has generated a good deal of recent media interest. The au pair exception – and how to determine whether a person falls within it, was recently examined by the Employment Appeal Tribunal (EAT) in Jose v Julio (and other linked cases).
The National Minimum Wage Regulations 1999 provide particular guidance as follows:
Regulation 2(2) provides, as far as relevant:
“(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,
(iv) and that the work is done in that context.”
In each of the cases a migrant worker living in the UK and working as a domestic servant alleged that she was not treated as part of the family and was thus entitled to minimum wage. The EAT held that this issue needed to be looked at as a whole, and that in particular there was no necessity for there to be a degree of equivalence in the tasks undertaken by the worker and family members, nor that the family should share aspects of all of the domestic work the nanny, or housekeeper, is expected to undertake.
Factors to take into account include whether the worker shares meals and social activities with the family, and the way they are treated overall, including the degree of privacy and autonomy they are afforded and dignity with which they are treated. This last aspect leads to a possible future ramification of the decision. On the facts, it was found that none of the claimants were exploited by their employer, but the comment was made that absence of exploitation was a factor which would indicate that a worker was treated as part of the family. While not a binding part of the decision, this leaves the way open for argument that a domestic worker who is exploited by the family with which he or she lives would be entitled to receive national minimum wage. It is hard to imagine that exploitation would be readily acknowledged by an employer and, of course, there is the wider question of just what constitutes “exploitation”. The decision makes clear that tribunals will consider each such claim on its own facts and will need to take a variety of different factors into account.