Au Pairs & Migrant Domestic Workers - Minimum Wage entitlement

Is an au pair entitled to the national minimum wage if certain tasks are not shared with the family? No, says the Court of Appeal in conjoined appeals concerning the application of the Minimum Wage Regulations 1999 (“NMW”)to domestic workers. In Nambalat v Taher & Another and Udin v Pasha & Ors [2012] EWCA Civ 1249

Both appeals concerned regulation 2(2) NMW under which domestic workers and au pairs are exempt from NMW if they live in the family home, make no payment towards accommodation or meals, and are not family members but are treated as such in the sharing of tasks and leisure activities. In separate ET proceedings both were not entitled to the NMW, as they fell within the exemptions. However, for the second claimant, a majority found that a change in accommodation meant the exemption no longer applied as the accommodation was not that which a family member would have enjoyed.

In this judgement on appeal Pill LJ said the central issue was whether the claimants were treated as members of the family 'in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities" (regulation 2(2)(a)(ii)). He reviewed the evidence before the ET and the conclusions of the EAT before deciding that both claims should be dismissed as they fell within the regulation 2(2) when read as a whole. He also found that the majority had erred in their conclusion about accommodation as there was no need to provide accommodation of a particular standard. An overall view is required. The central requirement is that the work is done in the context in which the worker is treated as a family member. People provided with free accommodation and meals would of course be expected to do more.

The National Minimum Wage was increased with effect from 1 October 2012, as follows:

• £6.19 per hour for workers aged 21 and over - a rise of 11p
• £4.98 per hour for 18-20 year olds - no change
• £3.68 per hour for workers above school leaving age but under 18 - no change
• £2.65 per hour for apprentices - a rise of 5p

If the employer provides accommodation, some of its value can count towards NMW pay - the accommodation offset. From October, the maximum that employers can count towards NMW pay will be £4.82 - a rise of 9p.

If you wish to discuss any issue arising from this article, or any employment issue contact Janet Long by email to j.long@pj-h.co.uk

The contents of this article are intended for general information only. It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice. We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.