The UK’s departure from the EU has had profound effects on aspects of employment law. As an Employment Appeal Tribunal (EAT) ruling made plain, one of them was to remove the legal entitlement of nannies, housekeepers and other live-in domestic workers to receive the National Minimum Wage (NMW).
One such worker who was engaged to work in a couple’s home succeeded in an Employment Tribunal (ET) claim that she was entitled to be paid the NMW. That was on the basis that the vast majority of live-in domestic workers are women and the failure to pay her the NMW thus amounted to indirect sex discrimination. The ET reached its decision during the transition period that preceded the UK’s final exit from the EU.
The National Minimum Wage Regulations 1999 and 2015 exclude domestic workers engaged in family homes from the right to receive the NMW. The ET disapplied that exclusion, however, on the basis that it was indirectly discriminatory and conflicted with Article 157 of the Treaty on the Functioning of the European Union, which enshrines the right of men and women to be paid equally.
In rejecting the couple’s challenge to that ruling, the EAT saw no reason to disagree with the ET’s conclusion. However, it noted that, since Brexit took full effect on 31 December 2020, tribunals have had no power to disapply domestic legislation on the ground that it is incompatible with directly effective EU law rights. The dismissal of the appeal, therefore, did not mean that a domestic worker in the same position would now be entitled to the NMW.