In the recent case of Nambalat v Tahor, the Court of Appeal provided guidance as to when a domestic worker is 'treated as a member of the employer's family' and therefore not entitled to the National Minimum Wage (NMW).
Under the NMW Regulations, domestic workers will not qualify for the NMW where they are genuinely treated as a member of the employer's family. This could be the case where the worker is living in the employer's family home, not paying for food or accommodation, and sharing the family's tasks and leisure activities.
Ms Nambalat claimed that she was not treated as a member of the family and that she was therefore entitled to the NMW. The Court Appeal concluded that routine tasks were shared and that she was included in family outings and holidays, as well as visits to the park, cafes and restaurants. She was able to decline invitations to go out. Meals were shared, although rarely taken together. However, due to changing family circumstances, Ms Nambalat shared a bedroom with the two younger sons and then, when the family moved again, slept on a mattress on the dining room floor. Taking into account all the circumstances and, in particular noting that the entire family faced cramped conditions, the Court concluded that she was treated as a family member and not entitled to NMW.
Key points
- The majority of domestic workers will be entitled to the NMW. Only workers who are genuinely treated as family members are not entitled to the NMW.
- The worker need not share all meals, tasks and leisure activities with the family. This requirement will vary with the habits of the individual family.
- An overall approach to family membership is required. Particularly onerous or extensive demands may be inconsistent with treatment as a family member.