United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0553/10/DM

UKEAT/0596/10/DM

UKEAT/0597/10/DM

UKEAT/0070/11/DM

UKEAT/0071/11/DM

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

At the Tribunal

On 8-10 November 2011

Judgment handed down on 8 December 2011

 

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

MR A HARRIS

MR B WARMAN

 

MS M S L JULIO APPELLANT

 

MS F JOSE RESPONDENT

 

MS T NAMBALAT APPELLANT

 

MR TAHER AND MRS S TAYEB RESPONDENTS

 

MS F JOSE APPELLANT

 

MS M S L JULIO RESPONDENT

 

(1) MR F CHAMSI-PASHA

(2) MRS L CHAMSI-PASHA APPELLANTS

 

(1) MS Y BINTI SALIM UDIN

(2) MR Y KAYLANI RESPONDENTS

 

MS Y BINTI SALIM UDIN APPELLANT

 

(1) MR F CHAMSI-PASHA

(2) MRS L CHAMSI-PASHA

(3) MR Y KAYLANI RESPONDENTS

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For Ms F Jose and Ms T Nambalat	MR PETER OLDHAM (One of Her Majesty’s Counsel) & MR JULIAN MILFORD (of Counsel) Instructed by: North Kensington Law Centre 74 Golborne Road London W10 5PS
For Ms Y Binti Salim Udin	MR PETER OLDHAM (One of Her Majesty’s Counsel) & MS SANDHYA DREW (of Counsel) Instructed by: North Kensington Law Centre 74 Golborne Road London W10 5PS
For Ms M S L Julio	MR CHRISTOPHER STONE (of Counsel) Instructed by: Magrath LLP Solicitors 66/67 Newman Street London W1T 3EQ
For Mr Taher and Mrs S Tayeb	MS REHANA AZIB (of Counsel) Instructed by: Evans Dodds Solicitors 5 Balfour Place Mount Street London W1Y 5RG
For Mr F Chamsi-Pasha & Mrs L Chamsi-Pasha	MR JONATHAN GOLDBERG (One of Her Majesty’s Counsel) & MS BUSHRA AHMED (of Counsel) Instructed by: Goldkorn Mathias Solicitors 6 Coptic Street Bloomsbury London WC1A 1NW
For Mr Y Kaylani	Debarred

 

SUMMARY

 

NATIONAL MINIMUM WAGE ACT 1998

 

National Minimum Wage Regulations 1999, Reg. 2(2)

 

Unauthorised deductions from wages

 

 

All three Claimants were foreign domestic workers employed in the Respondents’ households.  The EAT held that the work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied.  Accordingly they are not entitled to be paid the National Minimum Wage. 

 

Regulation 2(2)(a)(ii) applies if the worker is not a member of the employer’s family, but is “treated as such”.  The exemption in reg. 2(2) is to be construed narrowly.  The worker’s place within the family must be considered holistically. 

 

Particular regard must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities.  That does not exclude regard to other matters such as the general dignity with which the domestic worker is treated, the degree of privacy and autonomy they are afforded and the extent to which, if at all, they are exploited. 

 

The “sharing of tasks” does not include the work which the worker was employed to do.  The tasks that are for consideration are the tasks performed by the family as a family unit.  The issue is whether the worker is integrated into the family.  There is no justification for importing the concept of equivalence. 

 

Other issues

 

The decision in Jose that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages was not Meek-compliant.  Applying the principles in Sinclair Roche and Temperley v Heard [2004] IRLR 763 the claim was remitted to a differently constituted Tribunal. 

 

In Jose the tribunal had jurisdiction to hear a complaint of unlawful deduction of wages because the non-payment of wages was part of a “series” of deductions for the purposes of s.23(3) of the Employment Rights Act 1996.  Group 4 Nightspeed Ltd v Gilbert (1997) IRLR 398 applied. 

 

In Jose and Nambalat unlawful deduction of wages in respect of holiday pay considered and judgment given on these issues.

 

 

 

 

THE HONOURABLE MR JUSTICE SUPPERSTONE

Introduction

1.               The central issue in these appeals which were listed to be heard together is whether the Appellants, who are all domestic workers, were entitled to a national minimum wage under the National Minimum Wage Act 1998 (“the Act”).  Whether they were so entitled depends on the proper interpretation of Regulation 2(2) of the National Minimum Wage Regulations 1999 (“the Regulations”) as applied to the facts of the individual cases. 

2.               On 13 August 2010 an Employment Tribunal sitting at London Central, chaired by Employment Judge Sigsworth, found that Ms Jose was not entitled to be paid the National Minimum Wage (“NMW”).  On 17 August 2010 an Employment Tribunal sitting at Watford, chaired by Employment Judge Southam, found that Ms Nambalat was not entitled to be paid the NMW.  Both Ms Jose and Ms Nambalat appeal these decisions. 

3.               On 27 October 2010 an Employment Tribunal sitting at London Central, chaired by Employment Judge Snelson, unanimously found that Ms Udin was not entitled to be paid the NMW in relation to one period of her employment, but the Tribunal found by a majority that she was entitled to be paid the NMW in relation to other periods of her employment.  Ms Udin appeals the unanimous decision of the Tribunal and her employers, Mr and Mrs Chamsi-Pasha appeal against the majority decision. 

4.               Additional issues the subject of these appeals are as follows:

i)                Ms Julio appeals against the finding by the Tribunal that she discriminated against Ms Jose on grounds of her race in respect of unauthorised deductions from wages.  In her Notice of Appeal Ms Julio seeks orders that (i) the Tribunal did not have jurisdiction to hear the complaint of unlawful deduction of wages; (ii) Ms Jose did not suffer an unlawful deduction of wages beyond being given her full entitlement to paid holiday; (iii) she did not discriminate against Ms Julio contrary to the Race Relations Act 1976 (“the 1976 Act”); and (iv) the Tribunal erred in setting the award for injury to feelings within the middle Vento band.  Ms Jose does not resist Ms Julio’s appeal in respect of holiday pay. 

ii)              Ms Nambalat appeals against the decision of the Tribunal that she was not entitled to payment in lieu of accrued untaken annual leave. 

5.               Mr Peter Oldham QC and Mr Julian Milford appear for Ms Jose and Ms Nambalat.  Mr Oldham QC and Ms Sandhya Drew appear for Ms Udin.  Mr Christopher Stone appears for Ms Julio.  Ms Rehana Azib appears for Mr and Mrs Tayeb.  Mr Jonathan Goldberg QC and Miss Bushra Ahmed appear for Mr and Mrs Chamsi-Pasha.  In this judgment we refer to Ms Jose, Ms Nambalat and Ms Udin each as “the Claimant” and to Ms Julio, Mr & Mrs Tayeb and Mr & Mrs Chamsi-Pasha each as “the Respondent” or “the Respondents”.

The statutory framework

The National Minimum Wage Act 1998

6.               Section 1 provides, as far as relevant:

“(1) A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage. 

(2) A person qualifies for the national minimum wage if he is an individual who—

(a) is a worker;

(b) is working, or ordinarily works, in the United Kingdom under his contract; and

(c) has ceased to be of compulsory school age. 

(3) The national minimum wage shall be such single hourly rate as the Secretary of State may from time to time prescribe.”

7.               Section 2 states as far as relevant:

“(1) The Secretary of State may by regulations make provision for determining what is the hourly rate at which a person is to be regarded for the purposes of this Act as remunerated by his employer in respect of his work in any pay reference period. 

(3) The regulations may make provision with respect to—

(a) circumstances in which, times at which, or the time for which, a person is to be treated as, or as not, working, and the extent to which a person is to be so treated;

(8) No provision shall be made under this section which treats the same circumstances differently in relation to—

(a) different areas;

(b) different sectors of employment;

(c) undertakings of different sizes;

(d) persons of different ages; or

(e) persons of different occupations.”

8.               Section 3 gives the Secretary of State power to exclude certain classes of person from the right to the NMW.  It applies to persons who have not attained the age of 26 and also to persons who have attained the age of 26 who come within the limited category set out in s.3(1A), being persons within the first six months of their employment with a new employer, or persons participating in schemes or courses providing various forms of training, work experience or education.  By s.3(2) the Secretary of State may by regulations make provision in relation to any of the persons to whom this section applies (a) preventing them being persons who qualify for the NMW; or (b) prescribing an hourly rate for the NMW other than the single hourly rate for the time being prescribed under s.1(3).  Section 3(3) states:

“No provision shall be made under sub-section (2) above which treats persons differently in relation to—

(a) different areas;

(b) different sectors of employment;

(c) undertakings of different sizes; or

(d) different occupations.”

9.               Section 17 provides for enforcement of the entitlement to NMW.  It states, as far as relevant:

“(1) If a worker who qualifies for the national minimum wage is remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage, the worker shall [at any time (‘the time of determination’)] be taken to be entitled under his contract to be paid, as additional remuneration in respect of that period, [whichever is the higher of—

(a) the amount described in sub-section (2) below, and

(b) the amount described in sub-section (4) below]. 

(2) The amount referred to in sub-section (1)(a) above is the difference between—

(a) the relevant remuneration received by the worker for the pay reference period; and

(b) the relevant remuneration which the worker would have received for that period had he been remunerated by the employer at a rate equal to the national minimum wage. 

(3) In sub-section (2) above, ‘relevant remuneration’ means remuneration which falls to be brought into account for the purposes of regulations under sub-section (2) above. 

(4) The amount referred to in sub-section (1)(b) above is the amount determined by the formula—

(A/R1) x R2

where—

A is the amount described in sub-section (2) above,

R1 is the rate of national minimum wage which was payable in respect of the worker during the pay reference period, and

R2 is the rate of national minimum wage which would have been payable in respect of the worker during that period had the rate payable in respect of him during that period been determined by reference to regulations under section 1 and 3 above in force at the time of determination.”

10.            Section 28 (“Reversal of burden of proof”) states:

“(1) Where in any civil proceedings any question arises as to whether an individual qualifies or qualified at any time for the national minimum wage, it shall be presumed that the individual qualifies or, as the case may be, qualified at that time for the national minimum wage unless the contrary is established. 

(2) Where—

(a) a complaint is made—

(i) to an employment tribunal under section 23(1)(a) of the Employment Rights Act 1996 (Unauthorised deductions from wages), or

(ii) to an industrial tribunal under Article 55 (1)(a) of the Employment Rights (Northern Ireland) Order 1996, and

(b) the complaint relates in whole or in part to the deduction of the amount described as additional remuneration in section 17(1) above,

it shall be presumed for the purposes of the complaint, so far as relating to the deduction of the amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.

(3) Where in any civil proceedings a person seeks to recover on a claim in contract the amount described as additional remuneration in section 17(1) above, it shall be presumed for the purposes of the proceedings, so far as relating to that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.”

11.            Sections 34-40 of the Act cover “special classes of person”.  By ss.34 and 35 the entitlement to the NMW is extended to agency workers who are not otherwise “workers” and to home workers who are not otherwise “workers” respectively.  S.41 gives the Secretary of State power by regulations to make provision for this Act to apply, with or without modifications, to any individual of a prescribed description who would not otherwise qualify as a “worker”.  Ss.43-45 provide for the exclusion of other classes of person, for example voluntary workers (s.44) and resident workers in religious and other communities (s.44A) from qualifying for the NMW in respect of their employment. 

12.            Section 54(3) provides a definition of “worker”. 

“In this Act ‘worker’ (except in the phrases ‘agency worker’ and ‘home worker’) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.”

The National Minimum Wage Regulations 1999

13.            Regulation 2(2) provides, as far as relevant:

“(2) 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. 

(b) The conditions to be satisfied under this sub-paragraph are—

(i) that the worker is a member of the employer’s family,

(ii) that the worker resides in the family home of the employer,

(iii) that the worker shares in the tasks and activities of the family,

(iv) and that the work is done in that context.”

14.            Part IV of the Regulations is concerned with remuneration counting towards the NMW.  Section 30 specifies payments to the worker to be taken into account.  Section 31 deals with reductions from payments to be taken into account. 

The National Minimum Wage Issue

The facts and tribunals’ findings on liability

Ms Jose v Ms Julio

15.            Both the Claimant and the Respondent are Angolan nationals and of Angolan national origin.  The Claimant was employed in the Respondent’s household, in effect as a domestic or home help, and also nanny for her children, from 13 August 2003 to 6 September 2009.  The Respondent had a three-year-old son, Kyami, at the date the Claimant began work, who has autism.  Later, in January 2004, the Respondent’s daughter, Lweji, was born.  The Claimant was originally employed to assist the Respondent with looking after Kyami.  The Claimant cannot speak or read English, and can only speak but not read Portuguese.  It is common ground between the parties that there was an oral agreement that the Respondent would pay the Claimant £800 net per month.  Further the agreement was that the Respondent would also pay the Claimant’s accommodation, bills and food and return ticket to Angola each year so that she could visit her family for two weeks at Christmas or, as the Claimant maintains, spend time in Angola looking after the Respondent’s children.  The agreement was that the Claimant would work six days a week, Monday to Saturday, and that her duties would include basic domestic chores; cleaning, cooking, shopping, washing and ironing, as well as helping to take care of the Respondent’s son, and later her daughter.  It was further agreed that the Respondent would pay the cost of obtaining a passport and visa for the Claimant and the cost of renewing the visa every year.  The Respondent also provided the Claimant with a mobile phone and £10 per month to cover phone bills, and later a bus pass when she had to start taking the children to school.  This agreement was put into writing and signed by the parties on 8 January 2007. 

16.            The Respondent works for an Angolan oil company in London, and during the material time lived in flats in Maida Vale, moving into her second apartment in October 2004.  The flats in which the Respondent lived were three bedroom, two bathroom, with a living room and kitchen.  The Claimant had her own bedroom. 

17.            The Claimant had a long day, starting early in the morning and finishing late at night, but very largely she regulated her work within that day, doing the chores that were required as she saw fit, and there were large parts of the day when she was not required to do anything.  The Tribunal did not accept the Claimant’s evidence about alleged exploitation in respect of the work she was required to carry out.  The Tribunal accepted what the Respondent and the Respondent’s witnesses said about this.  Ms Huandi, who started working with Kyami in January 2008, taking him to school and looking after him at other times, said that the Claimant would often go out or have people to visit her, including the pastor and others from her church.  She would go out to shop, top up her mobile or have her hair or nails done.  When at home, she would often watch Brazilian soaps on television. 

18.            The Tribunal found that the relationship between the Respondent and the Claimant

“was a good and close one for most of the six years that the Claimant worked for the Respondent.  There was to some extent a sharing of the responsibilities for the looking after the flat, the cooking and caring for the children, although as the Respondent worked full time, much of this work fell on the Claimant’s shoulders and indeed that was why she was employed by the Respondent.  The Claimant had a good relationship with the Respondent’s children and we have seen photographs of her with the Respondent and her children on holiday in Angola, showing us that there was this close relationship between the Claimant and the Respondent and her family.  Personally, the Respondent and the Claimant got on well, talking about each other’s families, and swapping stories just as friends or sisters would.  At Christmas, when the Claimant went with the Respondent and her children to Angola, we find that the Claimant spent some time with the Respondent’s family but at other times she spent time with her own family, and she has children of her own in Angola.  …  On a broad brush basis, we find that the Claimant probably had about ten days actual holiday, when she wasn’t working for the Respondent at all, in any given year, as well of course as her Sundays off.”  (Para 3(iii))

19.            The Tribunal did not accept the Respondent’s evidence about the money that she paid to the Claimant.  The Tribunal accepted the Claimant’s evidence that she was not paid the sum of £800 net, as was agreed, at any time.  The Claimant should have received a total during her employment of £62,584.61, including the six days for September amounting to £184.61, but she in fact received £32,200, a shortfall of £30,384.61.  The Tribunal found that

“Over a six year period, she did not complain about being paid less than was agreed.  To begin with, this may be because she did not understand the true value of the English money that she did receive.  She must have become aware at some point that she was not receiving what had been agreed, and it is not entirely clear to us why she did not complain about it then, but only when she left the Respondent’s employment and was referred to charity, Kalyaan, and to the North Kensington Law Centre.  What it shows us, if anything, is that the Claimant had a good relationship (until it broke down) with the Respondent, and that the circumstances of her employment with the Respondent suited her well and she was happy with her lot.  Perhaps she did not wish to make things difficult between herself and the Respondent.  However there is no doubt in our mind that in this respect the Respondent exploited the Claimant’s position as a migrant worker, with little understanding of the customs and laws of this country, to pay the Claimant less than she was entitled.  The written agreement, into which the parties entered on 8 January 2007, clearly indicates that the Claimant should be paid £800 per month at the end of each month.  There is no provision in that agreement for holidays.”  (Para 3(iv)). 

20.            The Tribunal concluded as follows:

“We find that the Claimant resided in the family home of the Respondent, that she was treated as a member of the family, in particular as regards to the provision of accommodation of meals and the sharing of tasks and leisure activities, that she was not liable to make any contribution to her living accommodation or meals, and that had the work been done by a member of the Respondent’s family it would not have been treated as being performed under a worker’s contract or as being work because the conditions of sub-paragraph (b) would be satisfied.”  (Para 10(i)).

21.            The Tribunal further concluded that in respects other than in relation to wages and holiday entitlement

“…There was no exploitation of the Claimant by the Respondent, and we find there was indeed a good relationship between them for the vast majority of the Claimant’s period of employment.”  (Para 10(iv)). 

Ms Nambalat v Mr Taher and Mrs Tayeb

22.            The Claimant and the Respondents are of Indian origin.  The Respondents agreed to employ the Claimant as a live-in housekeeper.  It was agreed that her duties would consist of housework, for example, cleaning, washing, ironing and childcare.  She would be required to help with cooking.  It was agreed she would be paid £180 per week.  She would be provided with her own bedroom and all meals.  She would work Mondays to Saturdays but would have Sundays off. 

23.            There were four distinct phases of the Claimant’s employment by the Respondents.  The first phase began at the commencement of her employment in 2000 when the Respondents had two children, Amir who was then aged 8 and Zainab who was then aged 4.  The property was a five bedroom house with two bathrooms.  The second phase was from September 2001 when the Respondents’ third child, Husain, was born.  The third phase was from January 2003 until January 2006 when Mrs Tayeb was working and studying in a full-time capacity in a pharmacy role at Mount Vernon Hospital.  The fourth phase was from January 2006 until the end of the Claimant’s employment.  In this phase Mrs Tayeb was not working.  By now all the children were at school.  The Tribunal accepted that the scope of the Claimant’s duties would vary during these different phases of her employment. 

24.            The Claimant was provided with her own bedroom but the family computer and printer were kept there and there was a linen store in the room.  The family would print documents remotely from their own laptops, used elsewhere, to the Claimant’s bedroom and would collect printing from that room.  They would knock on the door if the Claimant was there or if the door was shut.  (Para 19.11). 

25.            The Claimant occasionally watched television with the family.  This would involve Indian dance programmes and she may well have watched television with the youngest child, Husain.  She did not watch television with Mr Tayeb.  (Para 19.17). 

26.            The Claimant was permitted to use the Respondents’ land line telephone and made numerous calls to India to her family.  She was permitted to open the telephone bill when it was received.  She did so and identified all of the calls for which she was responsible and she paid for them by deduction from her wages.  Later on she received an old mobile telephone from the Respondents and used that (19.19). 

27.            As regards family outings, the Claimant was invited to go to the cinema, and invited to attend drinks at Mr Tayeb’s mother’s house, but she declined these invitations (para 19.21). 

28.            On occasions the Claimant offered to give Mr Tayeb a head massage which he accepted and on occasions he requested that of the Claimant (para 19.22). 

29.            As regards the taking of meals the Claimant sometimes ate with the family, particularly where the meal was a roast or a barbeque, but generally the Claimant did not eat with Mr Tayeb.  She would eat with the remainder of the family if Mr Tayeb was to be late home and the family ate together without him (para 19.23). 

30.            The Claimant required medical treatment, first, in 2006, when she was offered acupuncture, which was arranged and paid for by the Respondents.  In March 2009, when the Claimant complained of shoulder and back pains, she proposed to return to India to obtain treatment but she accepted the Respondent’s advice to visit a chiropractor.  She had twelve sessions with a chiropractor and the Respondents paid for at least seven of those (para 19.25). 

31.            As regards the conditions in Regulation 2(2) the Tribunal said

“the questions we have to decide are whether the Claimant was treated as a member of the family and whether her work consisted of sharing the tasks and activities of the family.” (Para 21). 

32.            The Tribunal concluded as follows:

“22. Dealing with the first of those matters, we noted that the Claimant’s room was a room that the family did use, albeit to a limited extent.  The doors were generally left open.  Some meals were taken together with the Claimant and members of the family but the Claimant was free to take all meals with the family, although it was her decision not to, most of the time.  There was sharing of tasks, in particularly cooking and clearing up after meals.  Otherwise, the Claimant did the bulk of the work.  As regards leisure activities the Claimant shared these with the children to some extent.  She was invited to the cinema and to family occasions although she declined.  She watched television with some members of the family. 

23.  As regards the sharing of tasks and activities of the family, she was involved in cooking and preparation of the meals.  Time was spent with the children, especially Husain, which went beyond the scope of her duties, or watching television or clearing up after meals. 

24.  In our judgment, for those reasons, all of the conditions are satisfied.  That has the consequence that her work is not defined as work for the purposes of the National Minimum Wage Act.”

Ms Udin v Mr and Mrs Chamsi-Pasha

33.            The Claimant is an Indonesian national.  Her family was poor and she received a limited education, leaving school in her early adolescence.  At 18 she married a market trader, by whom she had two children.  In about 2000 she felt compelled by financial need to seek work abroad, despite her husband’s objections.  After a short spell in Saudi Arabia, she secured domestic work in 2002 at the home of Mrs Kaylani, an elderly lady who lived in Beirut.  Mrs Kaylani’s death in September 2003 led her to move, just over a year later, to the London home of the Respondents, the son-in-law and daughter of Mrs Kaylani.  She remained with them as a domestic worker in their household until 12 February 2009.  Mr Chamsi-Pasha is “a member of a famous Syrian family” and Mrs Chamsi-Pasha “was born into a well-to-do Syrian family” (para 2).  The Tribunal noted that perhaps not surprisingly given their backgrounds the Claimant and the Respondents had little in the way of common interests “but a shared religion which they practised together (all three are committed Muslims) served to some extent as a levelling force” (para 4).  When in 2004 the Claimant joined the Respondents in London their children, four sons and a daughter, were aged approximately 17, 15, 13, 4 and 2, and the family was living in a very large flat in Portland Place, W1.  In January 2007 that property was let under a three-year tenancy agreement.  Mr Chamsi-Pasha told the Tribunal without challenge that reduced financial circumstances had made it necessary to accept a very handsome rent and “downsize”.  The household, including the Claimant, moved to an address at Hallam Court, Hallam Street, a stone’s throw from Portland Place.  A second move, in September 2008, took the family to a maisonette in Thurloe Street, South Kensington.  There was no disagreement that, relative to the accommodation in Portland Place, conditions in Hallam Street and Thurloe Street were cramped. 

34.            For much of the period of the Claimant’s employment, those resident in the family home from day to day numbered five, namely Mrs Chamsi-Pasha, the Claimant and the three younger children.  Mr Chamsi-Pasha travelled extensively on business and typically he spent over 240 days per year away from home.  He would, however, return home at weekends whenever possible.  Once they had started their undergraduate courses, the two older boys would generally be away during term-time, although they would frequently visit at weekends and spend time at home during vacations.  Mrs Chamsi-Pasha would sometimes join her husband on business trips.  On other occasions, the two travelled together for pleasure.  When Mrs Chamsi-Pasha was travelling, management of the household was entrusted to the Claimant. 

35.            On disputed matters the Tribunal found the Claimant’s “attempt to paint a picture of herself as excluded, overworked, bullied, exploited and ultimately humiliated was … a travesty of the truth” (para 164).  The Tribunal found that the Respondents’ “descriptions of the sleeping accommodation and bathroom and toilet facilities at the various residences was true and accurate, as was their outline of the pattern of daily life and [the Claimant’s] working routines” (para 165).  Further “so far from members of the family being hostile towards her, … she was treated kindly, affectionately and with respect” (para 166).  The Tribunal accepted the evidence of Mrs Chamsi-Pasha that routine household tasks were shared (para 168).  It was common ground that, at home, the Claimant usually ate alone, but the family rarely sat down to eat together and eating alone at home was her preference (para 169).  The Tribunal found that the evidence of the Claimant “designed to persuade the tribunal that, in other respects, the family marginalised and excluded her”, was false.  Mr and Mrs Chamsi-Pasha included her without differentiation from members of the family in planned outings and holidays and on ad-hoc visits to the park or to cafes or to restaurants” (para 170). 

36.            At paragraph 201 the Tribunal said:

“Although our task largely involved choosing between starkly conflicting versions of events, there was one illuminating piece of evidence (paras 95 and 135 above) on which the parties agreed, namely that, although she often went out with the family, there were times when Ms Salim Udin and Zeyd elected to stay at home instead (Yasmine playfully referred to them ‘conspiring’ to this effect).  This struck us as telling.  It lends significant support to the Respondents’ general case that Ms Salim Udin was treated as a member of the family and gave the lie to her false case that she was seen as a mere possession or convenience, a cowed and silent figure, a person who had no voice, whose interests and preferences counted for nothing in the eyes of the Chamsi-Pashas”. 

37.            The Tribunal accepted that the minimum wage legislation provides an important protection against exploitation and any exemption must be narrowly interpreted.  At paragraph 213 the Tribunal said:

“213. We tentatively volunteer a few additional observations of our own.  In the first place, it seems to us that the concept of being treated as a member of the family must entail a degree of involvement.  The individual must be more than a guest.  She (or he, but for brevity we will use the feminine only) must be a member of the household.  She must be included to some degree in family life.  This involvement must entail taking part, or at least being expected or invited to take part, in tasks and activities which fall outside the scope of the work for which she is employed.  It also involves her sharing the family’s food and accommodation, which must extend to sleeping accommodation, bathing and washing facilities, kitchen and living space.  In our view the notion of being included as a member of a family does not require parity of treatment with family members, but a significant difference in the standard of facilities or services made available to the domestic worker on the one hand and the rest of the household on the other may argue against the conclusion that she is being treated as a family member.  On the other hand, we note that the Regulations refer to the provision, not sharing, of meals and we do not read them as requiring that meals be eaten together, or even that the same meals be taken.  (But clearly a worker who ate different meals from the family would be less likely to be seen as being treated as part of the family).  The concept of sharing tasks, must, it seems to us, be interpreted in the context of what it is that the worker is employed to do.  If a primary employment duty of the worker is to get children ready for school in the morning, the exemption clearly does not depend on that task being shared with other members of the family.  To put it another way, the domestic worker does not need to share her role with other members of the family in order to fall within the exemption.  It seems to us that the reference to ‘tasks’ is aimed at routine household jobs and chores outside the scope of the worker’s employment which one would expect members of a family to share as a matter of course.”

38.            The Tribunal continued:

“214. Unfortunately, we are unable to agree on the question whether the exemption applies here.  The majority, consisting of Mr Javed and Mrs Bond, takes the view that the wording of the exemption is not satisfied.  They point to the fact that Ms Salim Udin was at all relevant times a woman in her thirties.  After leaving Portland Place, she was accommodated in a small bedroom in Hallam Street and likewise in Thurloe Street, sharing with the two smaller boys.  And in Thurloe Street that arrangement gave way to a mattress on the dining room floor.  They also point to the limited and rudimentary storage space made available for her toiletries and other possessions at Thurloe Street (photo p.160).  The majority reasons that a member of the Chamsi-Pasha family in her late thirties living within their household would not have been treated as Ms Salim Udin was in terms of the standard of accommodation provided to her at Hallam Street and Thurloe Street.  And if the comparison with the imaginary Chamsi-Pasha family members is invalid, the majority rests its view in the alternative on the broad proposition that the standard of accommodation afforded to Ms Salim Udin at Hallam Street and Thurloe Street was such that she cannot be regarded as having been treated as a member of the family when living at those addresses.  The majority opinion is based solely on the accommodation at Hallam Street and Thurloe Street.  But for this aspect, the majority conclusion would have been that the exemption was made out.  Accordingly, Mr Javed and Mrs Bond consider that Ms Salim Udin is entitled to a remedy based on the national minimum wage provisions for unauthorised deductions from wages during her time at Hallam Street and Thurloe Street only. 

215.  The Employment Judge sees the matter differently.  In his view the Tribunal is not required, or indeed permitted, to reason that, since a mature female member of the family might have been better accommodated than the Claimant, the exemption [fails] on the accommodation ground.  The question is whether Ms Salim Udin was treated as a member of the family.  It seems to the Employment Judge that in the context of the relatively straitened circumstances of the family following the move from Portland Place, it cannot be said that in terms of the accommodation provided to her, Ms Salim Udin was treated otherwise than as a member of the family.  At Hallam Street she (unlike Yasmine) had a bedroom.  And at Thurloe Street she was provided with a bedroom too, although out of choice and with the agreement of Mrs Chamsi-Pasha, she eventually moved to the dining room.  The simple fact is that there was no bedroom which Ms Salim Udin could occupy alone.  The sleeping arrangements were not by any means ideal, but the entire family had to tolerate cramped conditions.  As the Tribunal has found the two elder boys had to share a small bedroom in circumstances where only one could sleep in a bed if both were at home at the same time.  In the Employment Judge’s view, it is impossible to say that there was a qualitative difference between the standard of accommodation enjoyed by Ms Salim Udin on the one hand and the family on the other, either at Hallam Street or at Thurloe Street.  The Tribunal is unanimous in its view that the provision of accommodation at Portland Place was compatible with the exemption.  It seems to the Employment Judge to be erroneous to say that the consequence of Mr Chamsi-Pasha’s decision to sacrifice space for location and remain in central London was that Ms Salim Udin ceased to be treated as a member of the family. 

216.  While we differ on the question of accommodation, we are united in regarding the language of the exemption as being otherwise satisfied.  We have found that meals were shared, even though they were rarely taken together.  We have accepted the evidence of Mrs Chamsi-Pasha that there was a sharing of routine household tasks.  And Ms Salim Udin was involved in leisure activities.  These took place at weekends: visits to the park and further afield, outings to places of interest, visits to friends and family, trips to the cinema and to local restaurants and local cafes.  She was not taken, as she suggested, so that use could be made of her services in looking after the children, but because she was seen as part of the family and it was natural that she should be asked.  The fact that she could, and sometimes did, decline invitations to go out with the family, reinforces the Respondents’ case that she was treated as a member of the family.”

The grounds of appeal

General principles

39.            Mr Oldham, on behalf of the three Claimants, submitted that all three Tribunals had erred in law in the approach they adopted to the proper construction of Regulation 2(2).  He submitted, broadly in line with the written submissions of Mr Milford (see paras 7-16), that the starting point for interpreting the exemption in Regulation 2(2) is that it must be given the narrowest possible interpretation consistent with the statutory language.  That is so, he submits, for a number of reasons.  First, it is consistent with the general purposes and scheme of the Act.  The purpose of the legislation is to make a difference to the low paid within all business sectors and regions of the UK economy, by ensuring that they receive a proper wage for the work that they do.  The purpose is reflected in the scheme of the Act in which the provisions for inclusion of types of work within the scope of the right to the NMW are drafted in the widest terms, and in which the provisions for exclusion are narrowly and restrictively drafted.  Second, the fact that Regulation 2(2) is made under an enabling power by s.2(3) of the Act, which prevents the Secretary of State from applying a different approach to different sectors of the workforce, at the very least buttresses the argument that the exemption should be narrowly construed, so as not to exempt a whole sector (live-in domestic workers) from the scope of the legislation. 

40.            Third, a narrow construction of the exemption is consistent with the general public policy good of avoiding discrimination, since the lower paid are disproportionately, women and persons from ethnic minorities.  Domestic workers are particularly likely to be women, and many will be migrant domestic workers, from certain ethnic minorities.  In support of these points Mr Oldham refers to the First Report of the Low Pay Commission (CMD3976, June 1998), whose recommendations form the basis for the Act.  Reference to this report is permissible as an indicator of the mischief that the Act was intended to remedy and the purpose of the legislation (see Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at 647, per Lord Simon).  A fourth point, Mr Oldham submits, is that migrant domestic workers who live within the confines of a family home and who are likely to have little knowledge of the laws and customs of the United Kingdom are particularly at risk of exploitation or abuse.  In this context Mr Oldham refers to an observation in Harvey on Industrial Relations and Employment Law about the scope of the family worker exemption at B1(B)(8), para 178:

“The most important element to be satisfied is Reg.2(2)(a)(ii) which provides that it must be shown 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’.  In keeping with the general scheme of the legislation it would appear that this exception should be construed narrowly and particular attention should be paid to ensure that the au pair relationship is not a simple shield for exploitation and that the relevant individual is genuinely being treated as a member of the family unit.”

41.            Mr Oldham submitted that the right contained in Article 4 of the European Convention on Human Rights which prohibits forced labour should inform the interpretation and application of the exemption.  In support of this submission Mr Oldham referred us to the decision of the European Court of Human Rights in Siliadin v France [2006] 43 EHRR 16.  He submitted that a wide interpretation of the exclusion would risk undermining the obligation to ensure there is no exploitation of vulnerability as described in Siliadin.  Such an interpretation would remove protection from workers, particularly women, who are often vulnerable and isolated and would increase their economic dependence.

42.            Whilst not accepting Mr Oldham’s submissions in terms all counsel for the Respondents accepted the following propositions:

i)                the exemption in Reg.2(2) should be narrowly interpreted;

ii)              it must be shown that the relevant individual was genuinely being treated as a member of the family unit; 

iii)            in applying the test, the worker’s place within the family must be considered holistically. 

43.            Mr Oldham submitted, and again all counsel agreed, as do we, that the wording of Reg.2(2)(a)(ii) is clear.  The wording emphasises that “particular regard” must be had to the provision of accommodation and meals and the sharing of tasks and leisure activities.  However it does not exclude regard to other material matters such as the general dignity with which a domestic worker is treated, the degree of privacy and autonomy they are afforded, and the extent to which, if at all, they are exploited. 

44.            There was however one important matter of construction where there was not agreement.  It concerned the meaning of the words “the sharing of tasks”.  Mr Oldham submitted that the Tribunal erred in law in each case in dealing with the question of whether “tasks” were “shared” without taking into account, as part of those “tasks”, the work which the claimant was employed to do and/or did.  We allowed Mr Oldham’s application to amend the notices of appeal in Jose and Nambalat to add this new ground of appeal.  The point had been taken in Udin.  Counsel for the Respondents were ready and prepared to argue the point, which they did.  The Respondents were not prejudiced by this amendment.  Plainly the meaning of the words “the sharing of tasks” was an issue in all three appeals. 

45.            We reject the construction for which Mr Oldham contends.  In our view the tasks that are for consideration are the tasks performed by the family as a family unit.  Reg.2(2)(a)(ii) requires the worker to be treated as a family member.  The issue is whether the worker is integrated into the family.  What work the worker does under his or her contract of employment is not relevant for the purposes of considering whether this condition is satisfied.

46.            We also reject Mr Oldham’s submission that there must be an equivalence in terms of the tasks performed by the worker and the employer and/or family.  Mr Oldham contended that in broad terms if there was not equality between the amount of work done by the worker and by members of the family then that was strongly suggestive that the worker was not being treated as a member of the family.  In our view there is no justification for importing the concept of equivalence into the clear words “the sharing of tasks”.  Regulation 2(2)(a)(ii) does not require the worker to share all meals, tasks and leisure activities with the family but rather that the worker is treated as a member of the family in those particular respects.  Each family is different.  When considering whether the condition is satisfied the habits of the individual family in relation to the taking of meals, the sharing of tasks and leisure activities have to be examined. 

Application of general principles to individual cases

(1) Jose

47.            Mr Milford submits that the Tribunal could not properly have concluded that the Claimant was treated as a member of the family, when on its own findings of fact the Respondent had exploited the Claimant’s position as a migrant worker to pay her less than the sum that was agreed over many years. 

48.            First, Mr Milford submits that the Tribunal adopted the wrong approach by not taking into account the non-payment of wages when considering whether the Claimant was treated as a member of the family.  Mr Stone accepts that this was a relevant factor that the Tribunal should have taken into account.  Having given careful consideration to the terms of paragraph 3(iv) and paragraph 10(i) and the competing arguments of counsel we accept Mr Milford’s submission that it is not clear from the decision that the Tribunal did take this matter into account or, if it did, how it did so. 

49.            However Mr Milford and Mr Stone are agreed that this Tribunal can reach its own decision as to whether the Claimant was treated as a member of the family, adopting the proper approach which includes having regard to this factor. 

50.            There is plainly force in Mr Milford’s submission that exploiting a worker’s position as a migrant worker to pay her less than the wages agreed and to do so over a substantial period runs counter to her having been treated as a member of the family.  However, as is agreed, we must adopt a holistic approach to this issue.  There is no challenge to the finding that the Claimant was treated as a member of the family as regards the provision of accommodation, meals and the sharing of tasks and leisure activities.  The relationship between the Claimant and the Respondent and her family was a good and close one for most of the six years that the Claimant worked for the Respondent (see para 18 above).  Even after the Claimant must have become aware that she was not receiving what had been agreed she did not complain and only did so after she had left the Respondent’s employment (see para 19 above).  We conclude that the Claimant was fully integrated into the Respondent’s family.  We are satisfied having regard to all the material findings made by the Tribunal, including the finding that the Respondent exploited the Claimant’s position to pay her less than she was entitled, that the Claimant was treated as a member of the Respondent’s family.  Accordingly the exemption contained in Reg.2(2) applied. 

(ii) Nambalat

51.            Mr Milford submits that in the context of Reg.2(2)(a)(ii), the reference to the “sharing of tasks” should be read as requiring most tasks to be “jointly” undertaken in the way one would expect family members to share them.  In so far as this submission mirrors Mr Oldham’s submission as to the “equivalence” of tasks, we reject it for the reasons we have already given (see para 46 above).  In so far as it suggests that individual tasks must be undertaken jointly, we also reject it.  There is nothing in the Regulation that requires the same task to be performed by more than one person.  Such a construction would run counter to the way most families operate, where tasks are divided up between members of the family.  All that is required is that there be a sharing of tasks and the Tribunal so found, in particular in relation to cooking and clearing up after meals. 

52.            Mr Milford further submits the fact that the family used the Claimant’s room because the family computer and printer were kept there is more consistent with the Claimant not being afforded the privacy that an adult was entitled to expect, rather than being treated as a family member.  However this submission overlooks the finding by the Tribunal that the family “would knock on the door if the Claimant was there or if the door was shut” (para 19.11).  This suggests her privacy was respected. 

53.            Similarly we reject Mr Milford’s two other criticisms of the decision.  There was a proper evidential basis for the finding that the Claimant shared leisure activities with the children; the words “to some extent” do not detract from that finding.  In addition there was a finding that she was invited to go on family outings and that she watched television with some members of the family.  The reference to time being spent with the children, especially Husain, which went beyond the scope of her duties under her contract of employment is a perfectly proper reference to one of the many matters that led the Tribunal to the conclusion that the Claimant was treated as a member of the family. 

(iii) Ms Udin

54.            Mr Oldham challenged the unanimous decision of the Tribunal in relation to the period of time, October 2004-January 2007, when the Claimant and Respondent lived at Portland Place on the basis that the Tribunal erred in construing the words “the sharing of tasks” as relating to tasks “which fall outside the scope of the work for which [the Claimant] is employed” (para 213, see para 37 above).  Further he submitted the Tribunal erred in the same paragraph of its decision in concluding that there was no requirement of “parity of treatment with family members”.  For the reasons we have given (see paras 44 to 46 above) we reject these submissions. 

55.            Mr Goldberg challenges the decision of the majority that in respect of the periods that the Claimant and the Respondents lived at Hallam Street and Thurloe Street the Claimant was not treated as a member of the family. 

56.            Mr Goldberg submits that the majority erred in the approach they adopted by focussing solely on the accommodation, alternatively the decision of the majority was perverse.  Whilst the Employment Judge and the majority differed on the question of accommodation at Hallam Street and Thurloe Street, they were united in regarding the language of the exemption as being otherwise satisfied (para 216).  In our view the majority erred in considering the issue of accommodation in isolation, as if there is a separate accommodation test, which there is not.  When all the material evidence in relation to the issue as to whether the Claimant was treated as a member of the Respondents’ family is considered holistically it is clear, in our view that she was so treated and a decision to the contrary would be perverse.  We agree with the observation of the Employment Judge to whom it seemed to be erroneous to say that “the consequence of Mr Chamsi-Pasha’s decision to sacrifice space for location and remain in central London was that Ms Salim Udin ceased to be treated as a member of the family” (para 215). 

57.            Even focussing on accommodation alone (which, as we have said, is not the correct approach), it is significant that at Hallam Street the Claimant, unlike Yasmine, the Respondent’s teenage daughter, had her own bedroom.  Yasmine, then aged 13, slept on a mattress in the hallway for about the first six months at Hallam Street.  When her grandmother visited she put a stop to this practice, insisting that she should sleep in her uncle Talal’s bedroom (para 116).  As for the sleeping arrangements at Thurloe Street, these were not by any means ideal, but the entire family had to tolerate cramped conditions.  The two elder brothers had to share a small bedroom in circumstances where only one could sleep in a bed if both were at home at the same time.  There was no bedroom which the Claimant could occupy alone.  She was provided with a bedroom which she shared with the two boys, Faysal and Zeyd, in which she had a bunk bed with a mattress.  Out of choice and with the agreement of Mrs Chamsi-Pasha the Claimant moved into the dining room and slept on a roll-up mattress which was purchased for her, together with new bedding.  The Respondents’ evidence, which was accepted, was that the change in sleeping arrangements was made at the behest of the Claimant, who preferred to be flexible as to when she went to bed because she enjoyed watching “soaps” on television, sometimes until quite late at night (para 117).  We conclude that the sleeping arrangements at Hallam Street and/or Thurloe Street could not have had the effect of the Claimant ceasing to be treated as a member of the family. 

Summary

58.            For the reasons we have given it is our view that regulation 2(2) applied in respect of all three claimants and none of them was entitled to be paid the National Minimum Wage.

Other Issues

Jose: Race Discrimination

59.            The Tribunal found that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of unauthorised deductions from wages, but not otherwise.  Applying the Vento bands, as they now are, the Tribunal awarded the Claimant £8,000 for injury to feelings. 

60.            The Respondent appeals against the Tribunal’s finding of discrimination and the level of the award.  Various grounds of appeal relied upon by the Respondent are set out at paragraphs 20-31 of the grounds of appeal.  We heard detailed and very well presented submissions by Mr Stone and Mr Milford on these matters.  For reasons which we will explain, and intending no discourtesy to counsel, we can deal with this appeal fairly shortly.

61.            The Tribunal stated at paragraph 10(iv) of its decision:

“We further conclude that the Claimant was exploited by reason of her non-British nationality/national origin so far as her wages and holiday entitlement were concerned.  She was a migrant worker with English language difficulties and little understanding of the culture here and of her rights.  The Respondent got away with not paying the Claimant properly or giving her proper holidays because of this, and if she had been a domestic worker of British nationality or national origins the Respondent would not have been able to do this.  Although Silvia Huandi is not a comparator because her circumstances were different, nevertheless she is illustrative of the difference in treatment between British nationals and the Claimant in the Respondent’s domestic service, and was of assistance to us in building up a picture of the hypothetical comparator…” 

62.            Mr Stone submits that on the crucial issue of the reason for the Claimant’s treatment, the Tribunal has failed to set out the contentions of the parties and indicated how and why the matter has been resolved in the Claimant’s favour.  For this reason the Respondent is not in a position to understand why she has lost and the judgment is not Meek-compliant (Meek v City of Birmingham District Council [1987] IRLR 250 at para 8, per Bingham LJ).  Mr Stone further submits that the “finding of fact” at paragraph 3(iv) that the Respondent “exploited the Claimant’s position as a migrant worker” is a conclusion rather than a primary finding of fact.  The Tribunal has failed to explain why or how it has jumped from its primary finding of fact that the Claimant was not paid her full salary, to its conclusions in paragraph 3(iv), and in particular to its conclusion on race discrimination in paragraph 10(iv).  The Tribunal, he submits, has failed to set out its reasons for reaching this conclusion or the primary facts or evidence relied upon.  We agree with these criticisms of the Tribunal’s decision.  Mr Milford realistically accepted that the Tribunal’s reasoning was deficient. 

63.            Accepting that Ms Huandi is not a comparator because her circumstances were different, the Tribunal nevertheless considered her to be “illustrative of the difference in treatment between British nationals and the Claimant in the Respondent’s domestic service” and that she “was of assistance to [the tribunal] in building up a picture of the hypothetical comparator”.  However Ms Huandi was not “in the Respondent’s domestic service”.  She was employed and paid by Sonangol, the Respondent’s employer.  She provided therapy for the Respondent’s autistic son for which she was paid the market rate.  There is no evidence that the Claimant was not paid the market rate for her role.  There is no indication in the Tribunal’s decision that it has taken account of the explanation given for the difference in treatment between the Claimant and Ms Huandi or, if it did, no reasons are given for rejecting the explanation. 

64.            We conclude that the Tribunal failed to explain why it considered that if the Claimant had been a domestic worker of British nationality or national origins the Respondent would not have been able to “get away” with not paying her properly or giving her proper holidays. 

65.            We consider this is not a case where the evidence is such that a finding of racial discrimination on the grounds of nationality will inevitably be perverse.  In the circumstances we have decided that this claim must be remitted to an Employment Tribunal to make proper findings of fact and for the Tribunal to direct itself properly in law in order to determine whether or not the Claimant was discriminated against on racial grounds. 

66.            Having regard to the factors which are relevant in deciding whether a case should be remitted back to the same tribunal (see Sinclair Roche and Temperley v Heard [2004] IRLR 763) we have decided that this claim should be remitted to a differently constituted tribunal.  A fresh hearing in front of a different tribunal will not add considerably to costs; the estimated length of the hearing is one day before the same tribunal, two days before a different tribunal; it is 18 months since the original hearing and there must be a real risk that the tribunal “will have forgotten about the case”; the reasons given by the Tribunal were totally inadequate; and we note that the Tribunal stated that it had “no doubt… [emphasis added] that… the Respondent exploited the Claimant’s position as a migrant worker, with little understanding of the customs and laws in this country, to pay the Claimant less than she was entitled to” (para 3(iv)).  It was this finding that appears to have been critical in leading the Tribunal to its conclusion on racial discrimination.

Jose: Unlawful deduction from wages.

67.            If the Claimant had been paid in accordance with her contract she should have received a total sum of £62,584.61 instead, she received £32,200.  The Tribunal ordered the Respondent to pay the Claimant the shortfall of £30,384.61.  The Respondent appeals this decision on the basis that the Tribunal did not have jurisdiction to hear the complaint of unlawful deduction of wages. 

68.            The claim of unlawful deduction of wages was brought on the basis that the Respondent had not paid the Claimant the agreed sum of £800 per month, but had paid a maximum of £600 in any given month.  The Respondent accepted that the deduction of wages each month until 1 September 2009, as found by the Tribunal, was a series of deductions for the purposes of s.23(3)(a) of the Employment Rights Act 1996 (“the 1996 Act”).  Mr Stone submitted that the deduction on 1 September 2009 was the last deduction in that series and that the Tribunal erred in finding that the last such deduction was the complete failure to pay the Claimant’s salary on 1 October 2009 for the period 1-6 September 2009. 

69.            First, the Respondent contended that no complaint was made regarding the complete failure to pay the Claimant for the period 1-6 September 2009.  We reject this contention.  It was common ground between the parties that the Claimant had not been paid for that period.  The Claimant’s claim was not limited to any particular period of employment and the “quantification” to which the Claimant referred at paragraph 31 of the Particulars of Claim followed by way of the Claimant’s Schedule of Loss which included a claim for the period from 30 August 2008 to 6 September 2009. 

70.            Second, we are satisfied that the Tribunal was fully entitled to find that the non-payment of wages for the period 1-6 September 2009 was part of a “series” of deductions for the purposes of s.23(3) of the 1996 Act.  The basis of Mr Stone’s submission is that the Respondent completely failed to pay the Claimant’s salary for 1-6 September 2009, as opposed to paying her only part of her salary.  We accept Mr Milford’s submission that that difference alone does not make the Tribunal’s judgment perverse.  Mr Milford referred us to the decision of this tribunal in Group 4 Nightspeed Ltd v Gilbert [1997] IRLR 398 which supports his submission.  In that case the EAT found that payments of the same type under the same contract, in that case commission, were, on the ordinary meaning of the word, part of a “series” (see para 17 of the judgment).  By contrast the case of Arora v Rockwell Automation Ltd UKEAT/0097/06, to which Mr Stone referred us is not a case where the question of what constitutes a series of deductions was considered. 

Jose: Holiday pay

71.            The Respondent appeals the finding of the Tribunal that the Claimant was entitled to be compensated for an unlawful deduction of wages in respect of holiday pay.  The Respondent contends that there has been no deduction of wages in relation to her holiday entitlement.  Mr Milford does not resist the Respondent’s appeal in this respect.  Accordingly, with the consent of the parties, we allow the Respondent’s appeal against the Tribunal’s finding that there was an unlawful deduction of wages in respect of holiday pay. 

Nambalat: Holiday pay.

72.            The Tribunal’s judgment at paragraph 25 dealt only with the issue as to whether the Claimant received her entitlement to annual leave in the final year of her employment.  Accordingly it dealt only with her claim for compensation for accrued but untaken leave under regulation 14 of the Working Time Regulations 1998 (“the 1998 Regulations”).  However the Claimant’s claims in respect of annual leave were not limited to a single claim for payment for accrued but untaken leave in the final year of her employment; she also made claims for payment in respect of periods of leave (none of which were paid) both under regulation 16 of the 1998 Regulations, and more particularly as an unlawful deduction from wages claim under Part II of the 1996 Act.  The unlawful deduction from wages claim was a claim for the whole of the Claimant’s period of employment.  She said that she had never been paid for annual leave, and that this amounted to a series of deductions throughout her employment on the principles set out in HMRC v Stringer [2009] ICR 985, HL. 

73.            The Tribunal was asked to amplify its reasoning in its decision, a request which the Employment Judge responded to by letter dated 17 June 2011.  The Employment Judge wrote:

“I accept therefore that our conclusion at paragraph 25 is incomplete.  It should have said that the Claimant did not seek to take leave until 2005, that in the years 2005-2008 she had taken leave and been paid in the form of the purchase of an air ticket, and that, for those reasons, the Tribunal was only further concerned with leave for the final year of employment…”

74.            Mr Milford submits that that answer fails to consider the relevant question which is whether the Claimant was paid for annual leave at the rate of “a week’s pay in respect of each week of leave” under regulation 16 from 2005 onwards.  It is clear from the Claimant’s list of issues before the Tribunal that the Claimant did not accept that provision of an air ticket amounted to payment of wages.  The Tribunal therefore needed to ask itself whether the provision of an air ticket did amount to pay for the purposes of regulation 16. 

75.            Miss Azib submits that the claim in respect of the years 2005-2008 was time-barred and the Claimant had taken her accrued entitlement in the last year.  Indeed, she submits, the Claimant had taken more than her entitlement and she had had the benefit of a free flight to India worth £914.  However as Mr Milford points out that submission is premised on the flight ticket being the equivalent of wages.  There was no finding by the Tribunal that the free flight was to be treated as contractual remuneration.  In those circumstances, we agree, the issue has to be remitted to the same Employment Tribunal to determine this narrow issue.

Conclusion

76.            In summary, in our judgment,

i)                The work done by each of the three Claimants for their respective employers was work to which regulation 2(2) of the National Minimum Wage Regulations 1999 applied.  They are not entitled to be paid the National Minimum Wage.  The appeals in the cases of Jose and Nambalat against these findings by the Tribunal are in both cases dismissed.  In the case of Udin the appeal against the majority decision of the Tribunal is allowed and the appeal against the unanimous decision of the Tribunal is dismissed. 

ii)              In Jose the appeal against the finding that the Respondent unlawfully discriminated against the Claimant on grounds of her race in respect of the unauthorised deductions from wages is allowed and that claim is remitted to a freshly constituted Employment Tribunal for determination. 

iii)            In Jose the appeal by the Respondent against the finding by the Tribunal in respect of the unauthorised deductions from wages on the ground the Tribunal had no jurisdiction is dismissed. 

iv)            In Jose the appeal by the Respondent against the Tribunal’s finding that there was an unlawful deduction of wages in respect of holiday pay is allowed. 

v)              In Nambalat the Claimant’s appeal in relation to holiday pay is allowed and that claim is remitted to the same Employment Tribunal for determination.