According to recent statistics provided by the Work Foundation, the number of full and part-time domestic staff across the country now exceeds more than two million. Put another way, 10% of households now benefit from some kind of domestic help whether it be a live-in housekeeper, a part-time cleaner, a nanny or an au pair.

Many of these domestic workers may not have written contracts, but this does not mean that the staff are not protected by employment law. If you employ domestic staff you need to be aware, among other things, of how the rules on working time and the national minimum wage apply to domestic workers.

Working Time Restrictions

The Working Time Regulations set out employees' and workers' entitlement to holiday and rest breaks, and also stipulate limits on hours worked both generally and in relation to night work. Those who are genuinely self- employed fall outside the regulations altogether, but a domestic worker does not count as self employed simply because the employer and the employee agree that this is how they will treat the situation.

Anyone employed as a domestic servant in a private household is entitled to take 5.6 weeks' paid holiday per year (pro-rated as appropriate for those working part-time). They are also entitled to:

  • a rest break (unpaid) of twenty minutes when working more than six hours per day;
  • 11 hours' uninterrupted rest per day; and
  • 24 hours' uninterrupted rest per week (or 48 hours uninterrupted rest per fortnight).

Domestic servants are not, however, covered by the further rules that:

  • limit weekly working time (currently 48 hours per week);
  • limit or restrict night work;
  • require health assessments in respect of night work; or
  • require adequate rest breaks for monotonous patterns of work.

It is key, therefore, to understand who is a domestic worker. Previous Government guidance explained that:

"A domestic servant is someone who works in or about the home doing jobs which would otherwise be done by the householder, such as cleaning, child minding or caring duties. The work can be for the upkeep of the home or for the convenience and comfort of those who live there."

This means that most live-in nannies and part-time cleaners are domestic servants, covered by some aspects of the regulations but unable to benefit from the full range of rights in relation to working time. Each case must, however, be assessed on its own facts and if there is any doubt that it is correct to characterise a member of staff as a 'domestic servant' it is possible for them to sign a written agreement opting out of the 48 hour limit on weekly working time.

The review of the situation should also consider whether the member of staff might be properly categorised as self- employed. The distinction is not always straightforward, but it is an important one as it dictates what rights as to working time an individual will have.

National Minimum Wage

The current national minimum wage rate (NMW) for workers over 21 is £6.19 per hour, with other rates for different age groups and apprentices. If an employer provides a worker with free accommodation, some of its value can be counted towards NMW pay but this is capped at £4.82 per day. These rates change annually in October.

Live-in domestic workers need not be paid the national minimum wage if they:

  • live in the family home; and
  • make no payment towards accommodation or meals; and
  • they are treated as if they were family members, particularly as to accommodation, meals and the sharing of tasks and leisure activities.

Two recent Court of Appeal decisions have considered the 'live-in staff' exemption and show that making assumptions about this, without undertaking a proper assessment, could be a risky business. If an individual is entitled to, but is not paid, the national minimum wage, he or she may have a claim in the Employment Tribunal for significant arrears of pay.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.