A crucial and long-needed step against the devaluation of domestic work: ‘family worker’ exemption dis-applied in Puthenveettil v Alexander & ors – by Natalie Sedacca

Image by mohamed_hassan from Pixabay

On 15 December 2020, the London South Employment Tribunal gave its judgment in a claim brought by a domestic worker, Ms Kamalammal P K Puthenveettil, challenging her exemption from payment of the national minimum wage on the basis of the ‘family worker’ exemption. The Employment Tribunal (‘ET’) accepted the Claimant’s argument that this exemption, stemming from the ‘family worker’ exemption, was unlawful and indirectly discriminatory on the basis of sex. This exemption has meant that some live-in domestic workers – part of an overwhelmingly female and largely ethnic minority and / or migrant workforce – have been at worst denied payment of the national minimum wage (‘NMW’), and in other cases lacked clarity about their entitlement to this very basic right. After outlining the background to Puthenveettil, this post will explain the family worker exemption and its (mis-)application to some live-in domestic workers. It will then analyse the judgment in Puthenveettil, its significance in questioning the devaluation of domestic work, and the limitations of the legal framework for domestic workers in the UK.

1. The background in Puthenveettil

Ms Puthenveettil arrived in the UK in July 2005 with the father of Mr Alexander, the first Respondent in her claim, and worked as a live-in domestic worker for the first and second Respondents from 14 November 2005 until 23 April 2013 when she resigned. Her rate of pay was £110 per week at the outset, rising to £120 per week in 2008, which was usually sent directly to her family in India. Her account was that she discovered in or around April 2013 that no payments had been sent to her family since November 2012. On 22 July 2013 she began a claim for, inter alia, unauthorised deductions from wages, which the Respondents contested on the basis of the family worker exemption. The Claimant argued that the family worker exemption amounted to indirect discrimination, contrary to section 19 of the Equality Act 2010, on the grounds of sex, and corresponding EU law including Article 157 of the Treaty of the Functioning of the European Union (‘TFEU’) on equal pay for male and female workers for equal work or work of equal value.

At first instance, an Employment Tribunal (‘ET’) judgment of 3 February 2017 held that the family worker exemption applied to the Claimant and did not consider the broader challenge to the exemption. On 4 May 2017 the Claimant’s request for reconsideration was declined by the ET, which stated that it had no jurisdiction to dis-apply the family worker exemption and that that it was unlikely that the Regulation containing the exemption  (see details below) could be read in a way ‘as to resolve any compatibility issues with European law,’ and that section 4(5) of the Human Rights Act 1998 meant the ET was not the appropriate forum to challenge the Regulation. The Claimant appealed and, in April 2018, the EAT held that the ET had been wrong to say there was no power to dis-apply the exemption, and that the point made about the Human Rights Act 1998 misunderstood the Claimant’s case, which was brought under EU law rather than the European Convention on Human Rights. Consequently, the EAT remitted the case to the ET for a further hearing, which eventually took place in July 2020 and led to the judgment given on 15 December 2020 that the family worker exemption should be dis-applied, and that Ms Puthenveettil was entitled to payment of the NMW.

The claim had originally been pursued against the two employers, Mr Alexander and Ms George. After the EAT judgment, however, the Secretary of State for Business, Energy and Industrial Strategy (‘SOSBEIS’) was joined as a party on 1 June 2018 at the request of the Government Legal Department. However, from 24 January 2019, the SOSBEIS declined to participate further in the case, such that the first and second Respondents were left to defend the claim at the remitted hearing in July 2020, which focussed on the application of the family worker exemption.

3. The exemption from minimum wage and its application to domestic workers

The ‘family worker’ exemption from minimum wage payment is as old as the NMW itself. It was originally enacted under Regulation 2(2) of the National Minimum Wage Regulations 1999, which has now been replaced by Regulation 57 of the National Minimum Wage Regulations 2015. The two sets of provisions are in the same terms, but since the relevant events in Puthenveettil took place before 2015, it referred to Regulation 2(2), the relevant parts of which are:

“In these Regulations ‘work’ does not include work (of whatever description) relating to the employer’s family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied.

(a) The conditions to be satisfied under this sub-paragraph are:

(i) that the worker resides in the family home of the employer for whom he works,

(ii) that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities,

(iii) that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals, and

(iv) that, had the work been done by a member of the employer’s family, it would not be treated as being performed under a worker’s contract or as being work because the conditions in sub-paragraph (b) would be satisfied.”

Strikingly, the provision relies on the rhetoric of workers being ‘like a member of the family’ to designate the work they perform as being ‘not work.’ As I have written about here, the frequent portrayal of domestic workers as ‘like a member of the family’ reflects the devaluation of this area of work and its conflation with work that would otherwise be performed for free by women in the family home. Devaluation of work in the private sphere is reflected in a number of aspects of domestic workers’ treatment in law, including their systematic underpayment and widespread low pay, the permission of longer hours than for other sectors, less favourable visa conditions, and their depiction as being ‘like a member of the family.’

The family worker exemption brings together a number of these instances of devaluation. That said, it was not specifically intended to relate to domestic workers like Ms Puthenveettil. When introduced, it was envisaged as applying to ‘au pairs,’ who the then Parliamentary Under-Secretary of State for Education and Employment stressed were young, unmarried and without dependents, having come to the UK for cultural reasons and working no more than five hours per day. This depiction of young, free, part-time workers who are in the UK primarily for cultural reasons is increasingly inaccurate even for some of those labelled au pairs, particularly in light of the deregulation of au pairing since 2008, as Cox and Busch have written about here and elsewhere. It is even further from relating to domestic workers who are engaged on a full-time, not necessarily short-term basis to provide for the housework and caring needs of families, like the Claimant in this case.

In practice, however, the family worker exemption has been used to deny such domestic workers’ entitlement to the NMW, or at least attempt to do so. A notable example is the 2012 Court of Appeal case, Nambalat v Taher, which involved two domestic workers, Ms Nambalat and Ms Udin, neither of who were conceivably au pairs. Submissions on their behalf argued that they should not be subject to an exemption intended for au pairs as workers whose ‘employment is to relieve the family of most of its household tasks, who ‘are likely to be female and from ethnic minorities’, and are particularly vulnerable to exploitation [7]. Despite this, the Court of Appeal maintained that the exemption applied in both cases, refusing to accept that there would need to be a ‘broad equivalence of work’ done between the worker and family members, because it was to be expected that someone receiving free accommodation and board would carry out more household tasks than other family members [42]. This showed a circularity in applying the definition, since other family members such as dependent children would usually also be provided with ‘free accommodation’ without being expected to complete full time work for the family. As noted by Hayes, the courts’ interpretation of the family worker exemption thus conveys the view of‘a distinctively different and less “worthy” group of workers,’ conflating paid employment with women’s traditional unpaid role in the home.’

Nambalat was the most high-profile case where the family worker exemption was applied, and the statement of Jamila Duncan-Bosu, solicitor for the Claimant in Puthenveettil, also refers to the 2010 ET case Genova v Allin where the exemption was found to apply despite the Claimant having sole responsibility for childcare and domestic chores during the Respondents’ working hours. There are also a number of cases in which the exemption has been successfully challenged. Key examples include Onu v Akwiwu, in which the Employment Appeal Tribunal (EAT)  endorsed the original tribunal finding that the family worker exemption did not apply, for example, because meals were not shared and the employers abused and threatened the worker as well as retaining her passport [32]. More recently, in the High Court case Ayayi v Abu, the employers accepted that they kept no records of how much they paid the domestic worker Ms Ajayi or how many hours she worked, because they believed this was not necessary for someone treated as a member of the family [23]. The judgment by Master McCloud criticised the Defendants’ attitude that ‘she was paid what she deserved’ as meaning she was kept economically dependent on them, and held that her circumstances were ‘oppressive servitude’ [93-94].

However, each successful challenge to the family worker exemption had turned on its own facts, rather than amounting to a general challenge. Ms Duncan-Bosu’s statement indicated that this requires Claimants to give detailed evidence explaining why their treatment was not as a member of the family, such that the exemption had often been ‘treated as a litigation tool’ and increases the length and complexity of proceedings [30-32]. Further, the cases that go to a Tribunal may well represent the tip of the iceberg compared to the employment relationships where the exemption has operated as an excuse or justification for not paying the NMW. What was distinctive about the Puthenveettil case is that is posed a general challenge to the exemption itself.  

3. Findings of the ET 2020 on the challenge to the exemption

As noted above,  the Claimant argued that the exemption amounted to indirect discrimination on the ground of sex, which was accepted in the December 2020 ET judgment. The Claimant’s  argument was based on the assertion that the family worker exemption disadvantages women as a group, because of evidence showing that the vast majority of workers it impacts are women. The Respondents’ argument sought to deny the disproportionate representation of women in domestic work. The ET judgment of December 2020 found in the Claimant’s favour on this point, noting the substantial evidence filed by the Claimant in support of this proposition [44-50]. This included analysis of job advertisements, breakdown of referrals to the National Referral Mechanism (NRM) that deals with potential victims of trafficking and modern slavery, statistics of registration at the migrant domestic worker charity Kalayaan, and statistics on Overseas Domestic Worker (ODW) visas issued, as well as witness statements.  

The Respondents also denied that women are put at a particular disadvantage by the exemption, arguing that statistics from the National Referral Mechanism (‘NRM’) showing 2.1% of women per annum were victims of domestic servitude meant that the others must be satisfied with the family worker exemption and in good relationships with their employers [51]. Reflecting submissions by Akua Reindorf, Counsel for the Claimant, this assertion added a ‘completely unwarranted’ gloss to the statistics, the ET rightly recognised that the NRM figures ‘are clearly not representative of the whole picture of those in domestic servitude’ [54]. This amounts to an important recognition that the prevalence of low pay and exploitation in the domestic work sector go far beyond those formally identified as victims of trafficking.

The ET went on to confirm that the family worker exemption places women at a particular disadvantage compared to men [55]. In reaching this conclusion, it referred to ILO documents including Article 12(2) of ILO Convention 189 on domestic work, which provides for limits on ‘payments in kind’ to domestic workers [58]. While C-189 has, regrettably, not been ratified by the UK, these documents were referred to as a source of information to give guidance and assist in identifying the disadvantage caused by the non-payment of NMW. There is also a more basic point of principle that it is clearly a disadvantage not to receive monetary compensation for work completed. As expressed by Akua Reindorf during the hearing, ‘an absolutely fundamental aspect of the work-wage bargain is that there’s a wage… Migrant domestic workers are… here to earn a wage so that their families can survive,’ rather than just to be provided with a room in London (a point that would apply equally elsewhere in the UK).

Having accepted that the family worker exemption amounted to a ‘provision, criterion or practice’ that put women at a particular disadvantage, the next question for determination was whether the exemption amounted to a proportionate means to meet a legitimate aim. Two purported aims had been suggested by the SOSBEIS: first, a reflection of ‘the unusual working relationship which exists when a live-in worker is or is treated as a member of the family’; and secondly, ‘encouraging and / or not discouraging parents from seeking to return or from returning to work’ [76]. Given the SOSBEIS’s subsequent withdrawal from the case, there was scant evidence in support of the proportionality of these aims [78], and the first aim was dismissed since the statement did not ‘demonstrate a real need’ [85].

The ET concluded that the second objective, support for working families, was capable of amounting to a legitimate aim since it ‘underpins a social policy of enabling mothers to return to the workplace and fulfil their career ambitions’ [86]. Nonetheless, it failed the proportionality test because of the lack of evidence about this having been adopted as an aim by the government at all, let alone to show that it was proportionate given its very serious impact [85-98]. Crucially, the judgment notes that the aim is trying to encourage one group of workers to return to work ‘by denying to another category of workers the statutory right to be paid’ [97].  This point had been made powerfully on behalf of the Claimant during the hearing: ‘It is simply not acceptable for the government to hold a position that women who are mothers should go to work and in order to facilitate that they should be able to have a slave.’ As further noted in the judgment, the government could have adopted a less discriminatory way to meet these social policy objectives, and had missed number of opportunities to clarify the policy and its objectives, including after reports of the Low Pay Commission in 2014 and 2015 that raised serious concerns about the family worker exemption [99-100].

Although partly based on the inadequacy of evidence provided by the SOSBEIS, this aspect of the judgment is significant for underscoring that arguments based on meeting the needs of working families should not be used readily to deny basic workplace rights to domestic workers. The broader context to this issue is that in many countries, live-in domestic workers are filling a gap created by the increasing entry of women joining the workforce without a corresponding increase in public provision of services or reduction in working hours. It is unacceptable for this reliance to come at the expense of domestic workers, and the findings in Puthenveettil rightly go some way to recognising this.  

4. EU law and alternative grounds

The claim was brought under both domestic legislation (the Equality Act 2010) and EU equal pay law. Although the Respondents had sought to argue that relevant EU law provisions lacked horizontal direct effect, the judgment notes that Article 157 TFEU, which expresses the relevant principle, is directly effective [106-8]. Despite the UK’s withdrawal from the EU, the ET held that legislation that was in operation immediately before ‘exit day’ would continue to be relevant with regards to interpreting, dis-applying or quashing rules made beforehand; since there was no way of reading the ‘family worker’ exemption compatibly with this law, the ET was bound to dis-apply it [110-114]. It is fortunate that this challenge could still be brought on the basis of EU law provisions despite the Brexit process. Since Article 157 TFEU has already been held to have direct effect by both the ECJ and domestic courts, this continues post-Brexit by virtue of EU Withdrawal Act 2018, s4, meaning the Article will continue to provide horizontal effect after exit day and insofar as is necessary to override the new NMW Regulations.

The provisions relied on in Puthenveettil are mirrored in social and economic rights instruments and related documentation – for example, General Comment 23 of the UN Committee on Economic, Social and Cultural Rights on the right to just and favourable conditions of work reiterates the importance of equal pay between men and women, as well as in relation to other grounds including race, nationality and migration status [11]. It also contains provisions against the undervaluation of domestic work and in sectors ‘predominantly employing women, minorities or foreign workers,’ and for domestic workers to enjoy minimum wage coverage where it exists, non-discriminatory remuneration, and social security [23, 47f]. While this amounts to a clear stipulation against lower minimum wages being applied to domestic workers, the enforcement mechanisms for social and economic rights instruments are limited, meaning that provisions like the Equality Act and those found in EU law are important.

5. The significance of Puthenveettil and further areas for reform

Puthenveettil underscores how the family worker exemption is bound up with the devaluation of domestic work, including in the dispute between the parties about hours worked. As against the Claimant’s own account of performing lengthy hours of work 7 days per week, the employers contended that the housework she performed was ‘not part of her job’ and was completed on a ‘voluntary’ basis. The EAT judgment observed that it was only in the context of viewing the Claimant as ‘like a member of the family’ that the original ET could reach a conclusion that work consistently performed over a series of years was ‘voluntary’ (EAT judgment [39].) The idea of housework not amounting to labour for the purpose of wage calculation echoes a finding in Nambalat v Taher, discussed above, that the Claimant spending time with the children that went beyond her duties was a factor in favour of the family worker exemption applying [19]. Such conclusions starkly reflect the view that caring work is not ‘real work’ – in other sectors, it would not be usual to see an argument that additional time an employee spends beyond their duties should reduce their wage entitlement.

Although as a first instance tribunal judgment it is not technically binding on future courts or tribunals, Puthenveettil is significant as a criticism of the extreme form of devaluation of domestic work that has been seen in the application of the family worker exemption. It is hoped that the clear articulation of the findings against the use of the exemption in such circumstances will strongly militate against its use in future cases involving domestic workers. But this should not be left to a question of hope, and the government should urgently bring forward legislation to repeal the family worker exemption or, failing that, tightly constrain it so that that it can only apply to the narrow category of au pairs that was originally envisaged – namely individuals that are genuinely on cultural or linguistic exchanges and performing limited amounts of domestic work. It is important to send an unambiguous signal that the payment of poverty wages to domestic workers will not be legally sanctioned. It is also to be hoped that a similar critique of devaluation of work in feminised sectors will be drawn up when the Supreme Court give its awaited judgment in Mencap v Tomlison-Blake on care workers’ minimum wage protection for ‘sleep in’ shifts; as Hayes notes here, the Court of Appeal’s denial that such protection should apply is based on undermining the value of care workers’ labour.

That something as basic as domestic workers’ entitlement to minimum wage has been in question until so recently, and is yet to be fully resolved, shows the inadequacy of the UK’s framework for the regulation of rights in the sector. Other notable problems include domestic workers’ exclusion from key working time protections including the maximum average working week of 48 hours and a lack of workplace inspection, and the specific, harsh terms of the Overseas Domestic Worker (ODW) visa. Changes made to the Overseas Domestic Worker (ODW) visa since 2012 have encouraged dependency by allowing stays of only six months except in very limited circumstances, creating significant vulnerability to abuse and exploitation. The Immigration Rules stipulate at R159A(v) that workers on this visa should be paid in compliance with the NMW in order to enter or remain in the UK, which underscores the contradictory nature of allowing the family worker exemption to apply. However, the harsh immigration regime means that falling foul of such requirements will have negative ramifications for the worker rather than the employer, who will be at risk of becoming undocumented and subjected to the ‘hostile environment’ if the requirements are not met. The devaluation of domestic labour based on its imagining as ‘women’s work’ is therefore exacerbated by visa conditions that make it much more difficult for workers to change employer or assert their rights. 

There are also limitations to the remedies provided by the Equality Act 2010 – as noted by Charlotte Goodman in her commentary on Puthenveettil, the Claimant was forced to rely on sex discrimination alone since immigration status is not a protected characteristics – a particular problem given the harsh visa regime – and provisions on intersectional discrimination and socio-economic disadvantage have not been brought into force. Although the limited grounds for equality law did not preclude a finding in the favour of Puthenveettil on the NMW issue, they have been a disadvantage in other claims brought by domestic workers such as Taiwo v Olaigbe, where the Supreme Court declined to find discrimination on the grounds of migration status. These limitations contrast unfavourably with the position in other jurisdictions, such as the November 2020 judgment of the Constitutional Court of South Africa, Mahlangu v Minister of Labour. As Mantouvalou and I recently wrote about, that judgment draws powerfully on the theory of intersectionality developed by Crenshaw to recognise the structural and historic factors behind the exploitation of domestic workers.

There are many serious issues yet to be tackled on the question of domestic workers’ rights in the UK, where the labour and immigration law regime excludes domestic workers and falls short of meeting human rights obligations in numerous ways. The ET judgment in Puthenveettil is an important step in addressing one of the most egregious and blatant abuses.

I am very grateful to Jamila Duncan-Bosu of the Anti-Trafficking and Labour Exploitation Unit for facilitating my attendance at the Employment Tribunal hearing by video link in July 2020 and sharing the court documentation with me, and to the editors of the UK Labour Law blog for their helpful comments.

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(Suggested citation: N Sedacca, ‘A crucial and long-needed step against the devaluation of domestic work: ‘family worker’ exemption dis-applied in Puthenveettil v Alexander & ors,’ UK Labour Law Blog, 1 March 2021, available at https://uklabourlawblog.com/)