In Nambalat v Taher and another [2012] EWCA Civ 129 the Court of Appeal held that if a worker was provided free accommodation, food and was treated as a member of the employer’s family, the worker was exempt from having to be paid minimum wage.

Under Regulation 2(2)(a) National Minimum Wage Regulations 1999 (SI 1999/584), it states that a worker who lives in their employer’s family home, and not charged for food and accommodation, are not entitled to the National Minimum Wage. The employer must treat the worker as a member of family, “in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities.

Facts

Two domestic workers, Ms Nambalat and Ms Udin brought proceedings separately to seek the National Minimum Wage from their employers.

Ms Nambalat’s claim was rejected as her situation fell within the above regulation. She and her employer’s family shared tasks and although the family used Ms Nambalat’s bedroom because the family computer and printer were kept there, they always knocked. Ms Nambalat was invited on outings and watched television with the family.

Ms Udin’s claim partly succeeded (the employment Judge disagreeing), as she experienced a poor standard of accommodation during part of her employment. Therefore for that part she was entitled to minimum wage.

Both workers and Ms Udin’s employer appealed the decisions.

Employment Appeals Tribunal

The worker’s appeals were rejected and Ms Udin’s employers appeal was upheld. The Tribunal had erred in considering the accommodation she received in isolation.

The worker’s appealed.

Court of Appeal Decision

The workers appeals were rejected. It was confirmed that the correct test required an overall approach to family membership, accommodation was just one factor. There was no need for an equivalence of work done in the house between family and worker, as a person receiving free accommodation and meals may be expected to do more household duties than family members.