Family worker exemption is indirectly discriminatory
/ATLEU has successfully challenged the family worker exemption contained within the National Minimum Wage Regulations. Under the exemption, live-in domestic workers were not entitled to receive the national minimum wage if treated as a member of the family’. It was therefore regularly used as a defence, even where workers complained of serious exploitation including the failure to pay wages.
In this case our client had been employed for a period of nine years. She asserted that she had been required to work up to 119 hours a week, for which she had received irregular payments of salary. On some occasions her salary equated to 92p per hour. The employer successfully argued that our client had been treated as a member of their family.
ATLEU argued that the exemption, contained within Regulation 57 of the National Minimum Wage Regulations 2015, is indirectly discriminatory as domestic workers are generally women, so more women than men are precluded from earning the national minimum wage. EU legislation requires that there is equal treatment on pay in respect of men and women, so the exemption could not lawfully be applied.
The Employment Tribunal found that the family worker exemption applies to more women than men and places women at a particular disadvantage when compared to men. As such the exemption is discriminatory and in the absence of evidence of legitimate aim, should be disapplied. Our client is now entitled to be paid the National Minimum Wage for each hour that she worked.
The judgment is one of first instance so on the face of it not binding on another court or tribunal. However, we hope that the volume of evidence available in support of the exemption being unlawful and the detailed judgment of the London South Tribunal would result in another court or tribunal similarly setting aside the exemption.
Our thanks to instructed counsel Akua Reindorf of Cloisters Chambers and Kalayaan and Professor Rosie Cox for their support.
