ATLEU to challenge family worker exemption
/ATLEU will challenge the family worker exemption to the right to receive the national minimum wage. The Secretary of State claims the exemption is necessary to support parents who wish to return to work; a position that clearly privileges one group of working women over another. The challenge will be heard at the London South Employment Tribunal from 28 - 30 April 2020.
Under the exemption, live-in domestic workers are not entitled to receive the national minimum wage if the worker is treated as a member of the family’. This is therefore regularly used as a defence even where workers have complained of serious exploitation including the failure to pay wages.
To make matters worse, the government will not take any further part in the proceedings and has refused to attend the hearing. However, they have not conceded the point, so the case will go ahead despite the fact that the government will not be present to defend its position.
ATLEU contends 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 should be unlawful.
Jamila Duncan-Bosu, solicitor for ATLEU:
“The exemption as currently drafted is too wide and should be struck down.The principle that all workers in the UK should receive the national minimum wage is not one that should be ignored without careful consideration.
“The exemption is at odds with the government’s commitment to reduce trafficking and labour exploitation by creating a sub-class of workers with unclear and uncertain rights. It’s really poor that the government has put forward a defence but is not willing to attend the hearing. Either the exemption is lawful and they should come to hearing and defend it, or its not and they should simply change it.”
The Secretary of State for Business, Energy and Industrial Strategy has stated that the exemption reflects the unusual working relationship which exists when a live-in worker is treated as a member of the family and their work is done in that context. The exemption also aims to not discourage parents from returning to work by imposing financial restrictions which may be unaffordable.
The exemption attempts to cover au pairs seeking cultural exchange and whose role is usually limited to childcare. In contrast, overseas domestic workers who need to financially support themselves and their families are usually tasked with housework as well as childcare.
In ATLEU's experience, those relying on the exemption tend to be professionals or those with independent wealth and well able to pay minimum wage. ATLEU has not yet seen a case of an employer who themselves was only earning a minimum wage.
Family worker exemption is indirectly discriminatory 15 December 2020
