Although domestic workers who live in and are treated as family members are not covered by the National Minimum Wage Regulations 1999, the Employment Appeal Tribunal (EAT) held in Thukalil and anor v Puthenveettil that the exemption was indirectly discriminatory against women. It also held that it was not a proportionate means of achieving a legitimate aim.
Basic facts
Ms Puthenveettil, who was employed as a domestic worker in the home of Mr and Mrs Thukalil from 2005, was initially paid £110 per week. This was then increased to £120 per week in 2008.
After resigning in 2013, she brought claims of unauthorised deductions from wages because she had been paid below the National Minimum Wage (NMW) at the time. Mr and Mrs Thukalil argued in their defence that as she came under the “family worker” exemption in Regulation 2(2) of the NMW Regulations 1999, she was not entitled to a minimum rate because, as a member of the family, she had been provided with accommodation and food, among other things. For her part, Ms Puthenveettil argued that regulation 2(2) was unlawful and should be disapplied.
Although an initial tribunal held in 2016 that she was not entitled to the NMW because of the exemption, the EAT overturned that decision and sent it back to the tribunal to reconsider three main issues - the lawfulness and disapplication of regulation 2(2); the number of hours of housework that Ms Puthenveettil performed; and whether that was voluntary or contractual as a matter of custom and practice or otherwise.
Tribunal decision
The tribunal concluded that regulation 2(2) had a strong adverse disparate impact on women which put them at a disadvantage compared to men and was, therefore, indirectly discriminatory on the ground of sex.
Nor could it be justified as it was not a proportionate means of achieving the government’s aim of accommodating the unusual working relationship of live-in workers treated as family members. Although the exemption might encourage parents to return to work by reducing their financial burden, the tribunal noted that this aim did not seem to have ever been adopted by government.
It also held that regulation 2(2) contradicted Ms Puthenveettil’s right under Article 157 of the Treaty on the Functioning of the European Union (which still had legal validity at the time of the tribunal decision). This requires member states to uphold the principle of equal pay for male and female workers for equal work or work of equal value. Finally, it held that regulation 2(2) was incompatible with the general EU law principle of non-discrimination.
Mr and Mrs Thukalil appealed to the EAT, arguing that article 157 did not apply as Ms Puthenveettil had not brought an equal pay claim using a male comparator. In any event, they said that article 157 was only concerned with eliminating disparities in pay between the sexes and not with ensuring fair wages.
EAT decision
Dismissing the appeal, the EAT held that as the source of the pay inequality was statutory, not contractual, there was no good reason why an equal pay claim should be the only remedy available to Ms Puthenveettil.
The fact that the 1999 regulations were not concerned with achieving pay parity between men and women was not a good enough reason. She was, therefore, entitled to assert her right under article 157, even though she could not succeed in an equal pay claim.
On that basis, it granted a declaration that Ms Puthenveettil was entitled to the minimum wage in respect of her period of service from 2005 to 2013.