Domestic workers’ rights and the Equality Act: Tribunal finds “au pair” exemption unlawful in minimum wage claim by migrant domestic worker

In Puthenveettil v Alexander & George, & Others 2361118/2013, an Employment Tribunal decided that the statutory exemption of some domestic workers from entitlement to the national minimum wage is sex discrimination. This first instance decision could have wide future implications for domestic workers’ minimum wage entitlement.

The Claimant was represented by Akua Reindorf, an employment and discrimination barrister at Cloisters. In this blog, Charlotte Goodman, a barrister at Cloisters, considers the judgment within the broader landscape of legal protections for domestic workers, and considers the limited ability of UK equality law to analyse the disadvantages that many domestic workers experience.

Domestic “family workers”: an overview

Some domestic workers in the UK are not entitled to the national minimum wage (‘NMW’). By Regulation 57 of the National Minimum  Wage Regulations 2015 (“the Regulation”), which re-enacts the old Regulation 2(2) of the 1999 Regulations,  workers who live in their employers’ family home, who are treated “as a member of the family” in relation to accommodation and meals, and whose work is done in the context of the “tasks and activities of the family”, do not have that work counted as “work” for the purpose of the NMW.

This “family worker” exemption was originally intended to apply to au pairs, who at the time could come to the UK on the au pair visa scheme (discontinued in 2008). (The detailed reasoning behind the original intention is not well documented, although in Parliament at the time Margaret Hodge made it clear she had au pair arrangements in mind.) Au pair arrangements were imagined as a situation where a young adult, usually a woman, in a gap year or foreign exchange situation, would join a host family for a few months, and gain the opportunity to study and earn some pocket money, in exchange for some part-time and relatively undemanding domestic work or childcare.

The government decided that this group of workers deserved different  treatment because of the degree of integration within the family context.  

Despite this original intention, there are several Tribunal decisions in which employers of migrant domestic workers clearly considered that the “family worker” exemption could accommodate employment relationships which in fact amounted to domestic servitude (Taiwo v Olaigbe in 2010, Onu v Akwiku in 2011). The appellate decisions in Julio v Jose in the EAT in 2011 and Nambalat v Tayeb in the Court of Appeal in 2012 also made it clear that the Regulation could apply to workers who are clearly servants rather than au pairs.

The broader law on domestic workers

More broadly, UK legislation specifically excludes many domestic workers from several key worker protections. Regulation 19 of the Working Time Regulations 1998  excludes those “employed as a domestic servant in a private household” from a number of key provisions, including the maximum weekly working time. Section 51 of the Health and Safety at Work Act 1974 excludes “domestic servants” from its scope, which includes the inspection of workplaces. To compound the lack of protection, domestic workers are often immigrants on the Overseas Domestic Worker visa, which comes with a series of legal and structural disadvantages.

The recent ET decision

Puthenveettil v Alexander and Others is notable because the Claimant brought a challenge to the family worker Regulation itself.

Sex discrimination

The Claimant, represented by Akua Reindorf, claimed that the provision indirectly discriminates on the grounds of sex. She argued that most family domestic workers are women and these women are disadvantaged by their lack of entitlement to receive the national minimum wage, which without adequate safeguards is inconsistent with the wage/work bargain and dignity at work. The Claimant provided extensive evidence that a majority of women are more likely to be family workers than men.[1]

Legitimate aim not proven

There were three Respondents: the Claimant’s two employers, and the Secretary of State for Business, Energy and Industrial Strategy (“the Third Respondent”).  The Third Respondent set out two suggested legitimate aims in its Response (but did not defend the case at Tribunal).

The first aim was “reflecting the unusual working relationship” when a live-in worker is treated as a member of the family. The Tribunal made short work of this; the fact of an unusual relationship does not demonstrate any real need to limit pay.  

The second was “encouraging and/or not discouraging parents from seeking to return … to work by imposing financial restrictions which may be unaffordable  or might otherwise act as a deterrent”.  The Tribunal recognised this could potentially underpin a social policy of enabling mothers to return to work. However, it concluded that the Respondents did not show the government actually adopted this aim. Nor was there any evidence that the Regulation would be proportionate if the government had adopted it. The Regulation would facilitate the return to employment of one category of workers by denying to another category of workers the statutory right to be paid. There was no real evidence provided on the balance of competing interests between these two categories of workers.

Outcome and impact

The Tribunal agreed with the Claimant. The Regulation was disapplied and the Claimant was entitled to the NMW.

Although this is a first instance decision, it has wide implications. The Regulation plainly discriminates, so any future case will need to provide justification. That justification may be hard to come by. As this blog will explore, the government has had ample opportunity to revisit the family worker provisions, and it knew that the existing provision provided a loophole for abuse. It was still unable to prove any legitimate aim. It seems unlikely that employers will be able to avoid paying live-in domestic workers the NMW after Puthenveettil.

Sex discrimination, immigration status, and the limited equality law framework

Although the case was brought on the basis of sex discrimination only, domestic work – and, as a subset of that, “family” work – is not only work that is more likely to be carried out by women. It is also work that is likely to be carried out by migrant women. More specifically, it is work likely to be carried out by poor migrant women. On an intersectional analysis, domestic work has been under-valuednot onlybecausehousehold labour has historically been viewed as inherent to women and therefore not “real” work, but also because migrants in the UK are subjected to structural disadvantages and cultural discrimination, and because socio-economic disadvantage makes workers vulnerable to abusive workplace practice.

Immigration status

Most domestic workers in the UK from non-EU countries require an Overseas Domestic Worker visa. The visa is short-term and encourages dependency on employers. This leaves it open to abuse (and is potentially incompatible with the European Social Charter). The visa also leaves the holder with no recourse to public funds, meaning that they have no access to almost all state benefits.

Under the Equality Act, immigration status is not a protected characteristic and UK courts have not extended other protected characteristics to include it. The Supreme Court, deciding Taiwo v Olaigbe and Onu v Akwiwu, found that immigration status could not be included within the race discrimination provisions in the Equality Act. It noted that Parliament had deliberately not included immigration status in the list of protected characteristics, and found the court could not read immigration status into nationality provisions. It did suggest that the government consider amending the Modern Slavery Act 2015 to rectify Tribunals’ inability to compensate mistreated migrant workers. The government did not.

Socio-economic disadvantage and intersectional discrimination

Immigration status is not protected under the Equality Act. Neither is socio-economic disadvantage, and subsequent governments have failed to bring into law the socio-economic duty contained in Section 1 of the Equality Act. Finally, the intersectional discrimination provision of the Equality Act has never been brought into force. Given the current constraints of the UK legislative scheme, therefore, the Claimant in Puthenveettil needed, as a tactical measure, to bring her case as sex discrimination only.

The Government’s failure to justify

In Puthenveettil the Tribunal pointed out several opportunities the government has had (and which it did not take) over the past 12 years to revisit the Regulation, and to gather historic statistical and economic data to show that there was any real need for the family workers provision. These include:

  • In 2008 the au pair visa scheme was discontinued;
  • In March 2014, The Low Pay Commission report stated that the original reason for the Regulation was for au pairs but ATLEU and trade unions had called for its abolition because of its application to migrant domestic workers. The report recommended the government review the law;
  • Vince Cable announced in March 2014, in response to the Low Pay  Commission report, that the government would “take the next available opportunity to  legislate and clarify the entitlement of migrant domestic workers to the National  Minimum Wage”;
  • In 2014 there was a consultation on draft Consolidated National Minimum Wage Regulations, where three trade unions recommended the abolition of the family worker exemption;
  • In March 2015, the Low Pay Commission report expressly stated: “we continue to believe that the difficulties faced by [migrant domestic workers] can only be satisfactorily resolved through a review of the application of the family worker exemption”;
  • In 2015, the new Regulation 57 of the 2015 Regulations was introduced, which, after a consultation process, substantially re-enacted Regulation 2(2);
  • In December 2015 the Ewins report into the overseas domestic worker visa was published. The report emphasised the particular vulnerability of overseas domestic workers and the government’s duty to give them effective protection.

The Tribunal found it relevant that the government had clearly known for some time that the family worker exemption was being relied upon by exploitative employers of migrant domestic workers in circumstances which were far removed from au pair arrangements.

It would be fair to say that the Regulation created an unintended slavery loophole in UK employment law and was operating as a cloak for exploitation and abuse of domestic workers.

Despite this, and despite the apparent intention of Vince Cable in 2014 to make legislative changes to close the loophole, the government re-enacted the exemption in 2015 in the new Regulation 57. The government also did not actively defend the case in Puthenveettil – presumably to avoid an appellate decision against it. In 2012 the Government made changes to the overseas domestic worker visa which compounded the disadvantage. This was fatal to its attempt to attain legitimate aims in a consistent and systematic manner.

An international perspective: the South African Constitutional Court

The decision in Puthenveettil was handed down soon after the judgment of the Constitutional Court of South Africa of 19 November 2020, Mahlangu & another v Ministry of Labour and othersA comparison of the two highlights the limitations in the UK legislative regime. The SA Court in Mahlangu held that excluding domestic workers from a social security provision (in that case, a benefit paid to workers or their families following injury or death in a workplace) breaches Articles of the SA Constitution which provide for equality before the law and prohibit unfair discrimination by the state.  

The UK statutory regime is, for reasons given above, constrained in its ability to take an intersectional and structural approach to discrimination – an issue somewhat unexpectedly raised recently by Liz Truss. In contrast, the South African Constitutional Court took an intentionally intersectional approach to the problem, as has been written about in a recent blog by academics Virginia Mantouvalou and Natalie Sedacca.

The decision explicitly referred to the distinctive, compounded nature of domestic workers’ experience of discrimination in South Africa. Domestic workers in South Africa are predominantly Black women, and thereby suffer specific discrimination. The SA court noted that in order to properly appreciate the disadvantage suffered by domestic workers, it needed to use an intersectional approach, which  would allow it to consider “the structural and dynamic consequences of the interaction between these multiple forms of discrimination” and consider the social and legal history in SA which put Black women “at the bottom of the social hierarchy” and pushed them into the lowest paid and most insecure jobs. In the UK the position is different, but the parallels are clear. The majority of domestic work is done by migrant women. Domestic work is traditionally undervalued both because it is gendered and because it is performed by migrant women. Domestic workers are regularly exploited, but domestic work is explicitly excluded from workplace protection. It is in this context that the Regulation, intended originally for au pairs, has for years created a loophole for domestic servitude. This judgment is an important win in the broader fight for domestic workers’, and migrant workers’.

[1] Some of them are as follows: (1) Between 2015 and 2018, female applicants for overseas domestic worker visas outweighed male applicants by around  75% to 25%. (2) National Census statistics for 2013 to 2018 suggest a greater number of female to male  workers working in private households. (3) Labour Force Surveys for 2014 to 2017 show that there are more women than men under the category ‘Cleaners and Domestics’. (4) An analysis of adverts by  Birkbeck College suggests that live in domestic workers are more likely to be  female than male. (5) National Referral Mechanism statistics for 2011 to 2018 show that more women than men are trafficked for domestic servitude.