How to avoid a domestic with the hired help

By Jonathan Goldberg, November 8, 2012
Follow The JC on Twitter
In the majority of cases, domestic workers should be paid the national minimum wage. Photo: iStock

In the majority of cases, domestic workers should be paid the national minimum wage. Photo: iStock

Joel from Wanstead writes:
I travel to Indonesia on business, and have come across a well-known agency there which supplies respectable local girls as domestic workers to foreign countries such as the UK.

The minimum contract is for 18 months, but they live in the home and perform all the domestic chores for a fraction of what an au pair or any UK worker would expect. Around £400 per month plus food, board and lodging is considered generous. My wife wants me to go ahead, but are there any legal complications?

Yes Joel, you are skipping gaily into a minefield. This is well illustrated by the cautionary tale of clients of mine, who recently won their case after four years of litigation, appeals and eyewatering costs.

They are a sophisticated and educated family of Syrian Arabs, well-known in the textile trade, who have lived in this country for decades. They are naturalised British citizens and devout Muslims. Interestingly, the husband told me “his father and grandfather always advised him to use a Jewish doctor and a Jewish lawyer”.

His wife had inherited from her mother in Beirut an excellent Indonesian housekeeper. On the death of the old lady, she came to London to live with them and their five children.

She was a veritable “treasure”, and as the employment tribunal later found, she was treated by them as one of the family. She shared with the wife the cooking and cleaning, she was the nanny to the children, and she accompanied them on their holidays and outings.

When the parents travelled abroad as they frequently did, and because she enjoyed their complete confidence, she was left in charge of the home and the children.

'All this came crashing to an end one night, when the wife discovered with horror in the housekeeper’s closet a magpie’s nest of items which she had stolen from the family'

Being also a devout Muslim, she thus prayed, worked, and played with this family. She received a similarly low wage to that quoted by you above. Nonetheless such sums purchased a lot for her family back home in Indonesia.

All this came crashing to an end one night, when the wife discovered with horror in the housekeeper’s closet a magpie’s nest of items which she had stolen from the family. When confronted, she immediately confessed to theft.

The wife did not want to ruin her with the police, but mindful as she told me of an Arab proverb that “the thief in your home can never be watched”, she told her to return to Indonesia.

The desperate housekeeper recited her evening prayers with the wife, then locked herself in the downstairs toilet and drank strong bleach. She spent a month in a coma, before awakening with severe internal injuries.

It did not take long before she was in the hands of a charity dedicated to preventing the exploitation of migrant workers, plus left-wing lawyers experienced in bringing cases of this kind.

She sued for enormous damages, claiming she had been used and abused by the family and kept in conditions approaching slavery. Her suicide bid, she claimed, had been forced upon her by the humiliation for a Muslim lady, of a strip-search at the hands of the wife and her teenage daughter.

The court held after a long factual investigation, that her whole story was nothing but a “huge invention”. Meantime, the press coverage, the anxiety, the irrecoverable legal costs and the sheer nightmare of this family before they were finally able to clear their names, hardly bear thinking about.

Joel, even assuming that you can first obtain from the Home Office a domestic workers visa, you should realise that the national minimum wage currently at £6.19 per hour, is payable as a matter of law to all workers, including those in domestic service.

The only narrow exception, is where the worker lives in the family home and is genuinely treated as a member of that family, particularly as regards the provision of accommodation and meals and the sharing of family tasks and leisure activities.

There have been cases where the employment tribunal has declined to apply this exemption and has awarded the domestic worker the minimum wage, because she was subjected to second-class treatment as a servant (unlike this case).

It makes no difference if she holds the title of “au pair” nor whether she hails from Indonesia, Poland, or just plain Essex. If she sues you for the minimum wage, the court will investigate very closely whether you honestly treated her as a member of your family.

So live the life of Downton Abbey if your wife insists, Joel. But you could end up with more than you bargained for.

The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com

Last updated: 2:34pm, January 4 2013