Not all in the family: migrant domestic worker who had to “pay” for accommodation and food wins minimum wage claim

In a minimum wage claim, brought by a migrant domestic worker, the High Court has addressed the “family worker” exemption found in the National Minimum Wage Regulations 2015, specifically the provision relating to “deductions” in respect of accommodation and meals.

Nathan Roberts considers the case and the trap the Defendants set for themselves. Anna Beale represented the Claimant, instructed by ATLEU (the Anti Trafficking and Labour Exploitation Unit).

Ajayi v (1) Abu (2) Abu [2017] EWHC 1946

The Claimant, Mrs Ajayi, brought a claim for the minimum wage against the Defendants. She alleged that she was the victim of human trafficking. She came to the UK from Nigeria in 2005 and worked for the Defendants (Mr and Mrs Abu) for over nine years as a domestic worker. Although there was no dispute she was paid for work done, the extent of work and the extent of pay were both disputed. 

The defence ostensibly relied on one of the “family worker” exemptions, specifically reg. 57(3) National Minimum Wage Regulations 2015. This is the exemption for workers who are treated as a member of the family and reside with the family.

For that defence to succeed, reg. 57(3)(c) requires that the worker has been neither liable to any deduction, nor to make any payment to the employer, or any other person, in relation to their living accommodation or meals. Master McCloud heard the trial on this single issue: whether the Claimant was liable to any such deductions.

The Defendants make a Part 18 bed

In the course of the case, the Defendants made their own bed and were forced to lie in it. In response to a Part 18 CPR request, they provided a detailed spreadsheet with a breakdown of monthly salary, “expenses”, and the net payments to the Claimant. The expenses included figures for “lodging” and “feeding” which were (according to the spreadsheet) deducted from the salary.

Seeking to justify the Claimant’s minimal pay, the Defendants had relied on a document that defeated their family worker defence. Given the spreadsheet plainly demonstrated deductions being made for accommodation and meals, they later sought to resile from the reliability of the document.  This led to the curious situation at trial that neither party considered the spreadsheet reliable (the Claimant denying she had been paid the sums stated on the spreadsheet).

In those circumstances, and where (as the Court would find) the Claimant was paid very little, the notion of “deductions” being made might have been considered artificial. Nonetheless, the Master held the Defendants to their spreadsheet. She did not accept the veracity of the numbers contained therein, but she did find that the Claimant’s “very limited pay was the produce of effectively making her pay for the ‘free’ accommodation and meals”.

The defence was rejected and in the process the Master makes damning findings about the Defendants’ treatment of the Claimant. They were found to have made the Claimant “utterly economically dependent” on them; their treatment of her was “oppressive servitude”.

The defence having failed, quantum falls to be considered along with the Claimant’s additional claim of harassment.

Nathan Roberts and Anna Beale.