Ms K Puthenveetil v Mr S Alexander and others: 2361118/2013

EMPLOYMENT TRIBUNALS

Case No 2361118/2013

Between

Ms K PuthenveetilClaimant

Mr S Alexander and othersRespondent

Before

Employment Judge Balogun

Members

Ms H Bharadia

Mr G Shaw

Ms A Reindorf (instructed by Counsel) for claimant

Ms R Azib (instructed by Counsel) for respondent

Date 16 December 2024

JUDGMENT

[1]The constructive dismissal claim fails and is dismissed.

[2]The claimant is not entitled to the national minimum wage by virtue of Regulation 2(2) of the National Minimum Wage Regulations 1999.

[3]The claimant is entitled to holiday pay of £297.23 in respect of her final leave year. All other claims for unlawful deduction of wages fail and are dismissed.

[4]The respondent failed to provide the claimant with a statement of employment particulars. The Tribunal awards 2 weeks’ pay in the sum of £240.

[5]The respondents failed to provide the claimant with payslips in breach of section 8 Employment Rights Act 1996.

[6]The respondents are ordered to pay the claimant the total sum of £537.23

REASONS

[1]By a claim form presented on 22 July 2013, the claimant complains of constructive unfair dismissal; Unlawful deduction of wages (non-payment of National Minimum Wage); breach of Regulations 11 (Weekly Rest Break) and 14 (Annual Leave) of the Working Time Regulations 1998 (WTR); Failure to provide a written statement of Employment Particulars (section 38 Employment Act 2002) and Failure to provide Itemised pay slips -section 8 Employment Rights Act 1996, (ERA). The respondent denies dismissal and contends that the claimant resigned. Save for the last claim, which is admitted, the respondents resist the claims. Claims of direct and indirect race discrimination pursuant to the Equality Act 2010 were withdrawn prior to the hearing. Witnesses

[2]The claimant gave evidence on her own account through an interpreter. Also giving evidence on her behalf was Mr Gana Nathan, a friend. The claimant also presented written statements from her daughter, Mrs Bindu Kochupattan, and her brother, Mr Murugan Nooranad. though neither attended the hearing.

[3]Both respondents gave evidence. Also giving evidence, on their behalf, were Anju George, sister to Mrs Riya George (R2), Jens Punnilath Koshy, brother in law to the respondents and husband of Anju George; George; Kochattu Varghese, father of R2; Saju Varghese, family friend of the respondents; and Abeymon Abraham, friend of R1. Documents

[4]The tribunal was provided with a joint core bundle, running to 503 pages; a supplementary bundle running to 109 pages and a claimant bundle comprising disclosures from the Home Office under the Data Protection Act 1998, running to 312 pages. Needless to say, the tribunal was taken to a fraction of the 924 pages provided. References in square brackets in the judgment are to the core bundle unless prefixed with a “S” or “C” in which case they refer to the supplementary and claimant bundle respectively.

The Issues

[5]The issues in this case are set out in the Case Management Order of Employment Judge Pritchard of 11 July 2014, and are considered in detail in our findings and conclusions. Ms Reindorf, counsel for the claimant informed the Tribunal that an agreement was reached early on in the proceedings that the preliminary issue at paragraph 14 and 15 of the Case Management Order (whether the Tribunal has jurisdiction to determine whether regulation 2(2) NMWR 99 are compatible with Article 157 of the European Treaty and Equal Treatment Directive and if so, whether it is so compatible) would not be considered on this occasion but deferred until after the Tribunal’s decision. The Tribunal can find no record of such an agreement on file but as both parties having the same understanding of the agreed position, we have not addressed that issue.

Credibility

[6]The accounts of the parties on almost every issue are so diametrically opposed that they cannot be explained by confusion or imperfect recall. Despite the voluminous bundle, there are limited documents supporting disputed accounts. Although the parties produced supporting witnesses and/or witness statements, that evidence was of marginal assistance, either because it was third hand or because it was mainly subjective opinion, most likely influenced by the personal relationship with one or other of the parties. As a result, we have placed little, if any, weight on the supporting witness evidence and have based our findings on the documentary evidence (or lack of) and the respective credibility of the parties.

[7]We have not approached the question of credibility globally but have looked at each allegation individually. We have done so recognising that just because a party is not credible on one matter does not mean that they cannot be credible in relation to another. That is pertinent here because we have concerns about the credibility of both the claimant and the respondents in a number of different respects, which we will highlight as we go along. Findings Much of the evidence contained in the witness statements of the parties is irrelevant background narrative. We have therefore not made findings on all of the disputed matters but instead have focused on those matters that are relevant to the issues.

Findings of Fact

[1]The claimant was employed by the respondents as a domestic worker between 14 November 2005 and 23 April 2013, when she resigned. The claimant and the respondents are Indian by national origin, all hailing from southern India.

[2]The circumstances of the claimant’s recruitment are disputed. R1 contends that she had been a domestic worker for his father (VM Alexander) since November 2003 and had accompanied him to England in order to continue providing him with care and support when he stayed with the respondents while receiving medical treatment in July 2005. The claimant on her part says that she had never worked for VM Alexander, before coming to England and met him for the first time through a recruitment agent in India. She also claims that she was instructed by VM Alexander that if asked, she was to tell the High Commission that one of the reasons for her trip was to look after his grandchild (Ryan) because she had looked after him before and built up a strong connection with him. She says she was also told that if she did not say these things she would not be given a visa.

[3]In the bundle is a contract of employment between VM Alexander, and the claimant, which we understand was presented to the High Commission in Chennai, India, for the purposes of the claimant’s visa application. The clamant is illiterate so would not have been able to read the document though she is able to sign her signature, which appears on the contract. The document records that the claimant had been a domestic worker for VM Alexander since 5.11.03 and that while in England, her duties would involve providing him with care and support. [422] The claimant says that she was unaware of the contents of this document until these proceedings as they were never translated to her at the time.

[4]We heard no evidence at all from the respondents as to the work carried out by the claimant for VM Alexander in India and VM Alexander did not give evidence. Further, in his email response to the claimant’s grievance, R1 makes the comment: “Let me first say that no wonder she (the claimant) has not worked at any place for more than a year due to her nature before she joined us in 2005”. If the claimant had worked for his father since 5.11.03 (nearly 2 years) he would not have made that comment.

[5]We accept the claimant’s evidence that she had not worked for VM Alexander before 2005 and that the reference to her having worked for him the previous 2 years was invented in order to support her visa application. We have seen elsewhere in this case instances of the respondents presenting a misleading picture to the immigration authorities in order to facilitate the visa application process and it is inconceivable that they were unaware of VM Alexander’s deception.

[6]We also find that the claimant was aware of VM Alexander’s deception and that it suited her to go along with it. Whilst it is likely that she would have been instructed on what to say at her visa application interview, we doubt her account of that instruction. Any instructions given would need to have been consistent with the contract submitted to the High Commission and it is noteworthy that there is no reference at all in the contract to the claimant looking after Ryan, even though this was supposedly key to her receiving a visa. We consider it more likely that the claimant was instructed by VM Alexander to support the fiction of a pre-existing employment relationship dating from 2003, if asked, as he would not have wanted to risk her saying something to the contrary.

[7]Hence, in respect of this conflict, we find that that claimant commenced work for Mr Alexander in or around July 2005.

[8]On Mr VM Alexander’s return to India in October 2005, it was agreed that the claimant would stay on to work for R1 and R2. This arrangement suited both parties. The claimant wished to remain so that she could earn money to send home to her family in India and the respondent wanted someone to look after Ryan from the same cultural background.

[9]The Home Office was notified of the changed arrangements and a revised contract was entered into, this time between R1 and the claimant. The contract, dated 14 November 2005 provided that the claimant was employed as a domestic worker to act as a nanny to Ryan and that her role involved cooking his meals, stimulating him in play and work and doing his washing and ironing. It further provided that the claimant would be provided with free food and accommodation, including a single room for her exclusive use. Her pay is cited as £110 per week, to be paid at monthly intervals. The contract is signed by both the claimant and R1. [424].

[10]The contract was updated a number of times for visa renewal purposes. We have been provided with contracts dated 30/7/07 [425], 13/10/08 [C50] and 1/1/10 [428]. The 2008 contract was disclosed by the claimant. R1 says that he does not recall the 2008 contract but it bears his signature and he does not claim it to be a forgery. Also, it was amongst documents provided to the claimant by the UK Borders Agency (UKBA) following a DPA (data protection access) request and appears to have been an enclosure to a visa extension application made by R1 for the claimant on 12.1.09. We are therefore satisfied that the document is valid. The significance of this contract is that it purports to increase the claimant’s weekly pay from £110 to £120 per week. The claimant denies ever receiving such an increase. The claimant claims that a further contract was signed at the airport in India in 2011. R1 denies this. We have seen no evidence of that contract but in any event, it is not suggested that the terms were materially different from those that went before it.

[11]Apart from the salary increase referred to above, the terms of the various contracts were the same as the original one, even though the respondents had 2 more children during the claimant’s tenure – Johann in January 2010 and Megan in December 2012.

[12]Notwithstanding what is written in those contracts, there is a dispute between the parties as to the duties the claimant was required to undertake and her working hours. The claimant claims that she was responsible for the majority of the household tasks and worked 17 hours a day, 7 days a week. The respondents, on their part, contend that the claimant’s role was limited to the matters set out in the contract, (save that it later included Johann) and that she was not responsible for housework generally. Her working hours were said by the respondents to be, on average, 4 hours a day, Monday to Friday. The respondents do not say that the claimant did not do any housework; what they say is that anything she did over and above chores related to the children was done on a voluntary shared basis with other members of the family. We shall come back to this point later. Control

[13]The claimant claims that the respondents exercised undue control over her. She claims that they had custody of her passport throughout her employment ; that she was instructed not to speak to their guests and; that they discouraged their son, Ryan, from conversing with her in English so that she would not be able to speak to people outside the house. She also claimed that she was not allowed out and was told many times that after doing the school run, she was to return straight home and not to roam around. She also claims that her possessions were routinely searched. The respondents refute all of these allegations and say that the claimant was free to come and go as she pleased when not carrying out her duties.

[14]The claimant travelled to India on her own on 3 separate occasions during her employment – February 2008, July 2010 and 2011. On those occasions, she would have had custody and control of her passport for the journey, at least. The claimant claims that on each trip, her passport was taken off her on arrival by a person acting on the respondents’ behalf (a member of their family) and only returned on her departure. She says that this was done to ensure her return to the UK under threat of having to reimburse the respondents for the cost of her visa and flight, which she could not have afforded to repay. That suggestion is however belied by the claimant’s own evidence.

[15]The claimant travelled to India with the respondents in 2007 and her position is that R1 retained her passport throughout the trip. The claimant told us that while spending time with her mother during that trip, she informed the respondents, that she was unhappy and would not be returning to work for them in the UK. She claims that as a result, the respondents came to her at her mothers’ house, begged her to change her mind and offered her a pay rise. If they were exerting control of her through custody of her passport, as suggested, she would not have had the free will to threaten resignation and there would have been no need for the respondents to beg her to change her mind. Also, the claimant did not assert to us that she returned on that occasion because she felt forced by the fact that the respondent had her passport; what she said was that she returned because of pressure from her mother and because of the financial opportunities it would bring to her family.

[16]Whenever the claimant needed her passport, for example, on the 3 occasions she travelled to India alone, it was available to her. The only occasion when the claimant needed her passport and it was not available was when it was in the custody of the Home Office.

[17]For these reasons, we are not satisfied, on balance of probabilities, that the claimant’s passport was held by the respondents against her will.

[18]We note from the evidence that the respondent gave the claimant an Oyster card for her personal use (it was not required for her duties). She was also given a mobile phone and had her own key to the house at all times. Further, on more than one occasion, the claimant was left alone in the house while the respondents were abroad in India. As already mentioned, she travelled to India by herself on 3 occasions and on one of them, remained for 8 months while tending to her sick mother. This does not suggest to us that the claimant’s movements were controlled by the respondents; quite the opposite. Non payment of national minimum wage

[19]The respondents rely on Regulation 2(2)(ii) National Minimum Wage Regulations 1999 (NMWR) in support of their contention that the claimant was not entitled to the national minimum wages as she was treated as a member of the family. There are significant factual disputes between the parties as to how the claimant was treated by the respondents. Indeed, the claimant’s allegations about her treatment by the respondents are as far removed from the way in which a family member would be treated as you can get.

[20]In May 2013, after her employment had terminated, the claimant provided information about her treatment, working conditions and living conditions with the respondents to Kalayaan, a London based charity that provides advice and support to migrants. That information was provided for the purposes of a Home Office referral of the claimant as a potential adult victim of trafficking. The referral documentation provides guidance on trafficking and examples are given of the type of treatment that might suggest trafficking. Although the claimant has not alleged before us that she was trafficked, a large part of her evidence so closely mirrors some of the examples set out in Kalayaan’s guidance as to invite caution. e.g. the withholding of a passport is cited as a key exploitation indicator. The claimant told Kalayaan that she had never seen her passport apart from one occasion when she travelled to India alone. As found above, the claimant in fact travelled to India alone on 3 separate occasions. We therefore have to ask ourselves why the claimant gave a misleading account to Kalayaan.

[21]We understand that based on the information provided to Kalayaan, the claimant was deemed to be a potential victim of trafficking and it was submitted by counsel on her behalf that the tribunal cannot therefore look behind that information. We disagree. We understand from the respondents that their account was not sought before the designation, which means that the claimant’s account was taken at face value. As there were no legal findings made binding the tribunal, we are entitled to scrutinise the claimant’s statements for the purpose of assessing her credibility as we note that some of the responses she gave on that occasion are inconsistent with her evidence before us.

[22]The respondents have the burden of proving that the NMWR exemption applies and they rely on the following matters in support. Accommodation

[23]Throughout her employment, the claimant lived with the respondents in their family residence, which was a 3 bedroom house. The claimant was provided with her own bedroom, the respondents slept in the second bedroom and the third bedroom was the childrens’ room. The claimant was never required to share or give up her bedroom even when the house was full with visitors, which it often was as the respondents’ often had relatives staying over from India. Also, R2’s sister, Riya, lived with them for 4 years while studying in London during which time she shared the childrens’ bedroom. Meals

[24]The respondents say that the claimant shared the family’s meals and was invited to eat with them but generally chose to eat her dinner early in her room as she tended to retire by 9pm. The claimant denies this and told us that she was required to eat her meals separately from the rest of the family. Her case was that whilst the family ate at a dining table, she was made to eat her meals on a plastic chair in the corner of the kitchen.

[25]In her statement to Kalayaan, the claimant alleged that she was made to eat left overs though that is not an allegation she has repeated in these proceedings. She accepted that she ate the same meals as the rest of the family but said that R2 decided on the menu. It has not escaped our attention that not eating with the rest of the family and being given left overs is one of Kalayaan’s indicators of domestic servitude. We are concerned that facts may have been manipulated to fit into certain headings and this causes us to treat with some caution what the claimant is telling us now, especially where it differs from early statements.

[26]On this conflict, we prefer the respondents’ evidence and find that the claimant was not required to eat separately. Having been a domestic servant on 2 previous occasions where there may well have been a clear demarcation between servant and master, to use old terminology, the claimant may not have expected to eat with the family and may have felt uncomfortable doing so. Either way, we are satisfied that it was a matter of personal choice. Involvement in social activities

[27]The respondents contend that they involved the claimant in family and other social events. In support of this, they have produced a variety of photographs of the claimant with them or the children at different social or family events. In our view, the photos are of little evidential value as they do not assist us in determining why the claimant was present. Her position is that she did not socialise with the family at all and that when she attended social events with them it was in order to look after the children. However, she also told us that she was often invited to attend church with the family but chose not to go. The children accompanied the respondents to church every Sunday and spent the best part of the day there. If the claimant was required to attend to look after them, she would not have had the option of turning down the invitation.

[28]In August 2010, the respondents travelled to India for the wedding of R2’s sister, Anju. The claimant flew out to India, alone, a few days after the respondents. The respondents say that the claimant was a guest at the wedding but she claims she was there not as a guest but to look after the children. The claimant’s daughter, Bindu, was also at the wedding and the respondents say that they invited her so that the claimant had someone she knew to keep her company. That to us seems inconsistent with the claimant being in attendance to work and she has provided no alternative explanation for her daughter’s presence. Taking all of these matters into account, we find, on balance, that the claimant was invited to join the respondents in social events and chose whether or not to do so. Housework

[29]There is a dispute between the parties as to the extent to which the claimant was required to undertake household chores and cooking. The claimant says that in addition to her childcare responsibilities, she cooked all of the meals and did all of the washing, ironing and cleaning. The claimant contended that she worked 18 hours a day, 7 days a week. In her statement to Kalayaan, she states that she worked from 6am to 11pm, sometimes later if there were guests over. [390F] However, when challenged on her hours in cross examination, she said that she never looked into the hours she was working. As part of her evidence, she has produced a Schedule of Activities breaking down her basic duties and the period of time spent on them. The footnote to the schedule indicates that this was the state of affairs prior to the other 2 children being born (pre 2010) and states that the duties listed continued thereafter. In addition to childcare duties, the schedule contains a list of household chores that she says she was required to perform.

[30]It is not the respondents’ case that the claimant did not do housework and we believe that she did. They say that it was not part of her job and that any housework was done voluntarily on a shared basis with other members of the house. R2 said that she did most of the cooking for the week at the weekend and the claimant would offer to assist.

[32]The respondents addressed the claimant as Chechi, which they say means older sister. They say they did so out of respect and because they considered her part of the family. The claimant accepted that the respondents addressed her as Chechi but said that the term was one used to address servants in Malayalam, which is what they considered her to be. In support of that assertion, the claimant claims that the respondents’ children were instructed by R2 to treat her as a servant. We prefer the respondents’ evidence on this, not least because it is supported by the claimant’s own witness statement where, at paragraph 43, she says: “They in turn called me “Chechi” which means “elder sister”. The claimant also confirmed in the same paragraph that she called R1 “Monay” meaning son and R2 as “Moluti” which was a nickname she said everyone used for R2. We consider it unlikely that someone who was regarded as a servant would address her employers using such terms of endearment. The fact that she did not address them by their names (or them by hers) is unremarkable and we are satisfied that this was a matter of cultural norm rather than social hierarchy. In reaching our findings, we have been greatly assisted by the knowledge and experience of panel member Ms H Bharadia, who is of Indian origin. Weekly rest

[33]The claimant alleges that she was never given any time off. That implies that she worked 7 days a week without a rest day. The respondents disagree and contend that she was not required to work on Saturday or Sunday because they looked after their children then, nor was she assigned any other tasks. Looking again at the claimant’s Schedule of Activities, we note that there is only one childcare related duty listed over the weekend - preparing and feeding Ryan breakfast for 30 minutes on Sunday – and even that appears rather random (why just Sunday and not Saturday). The respondents spent a large part of Sunday at church and the claimant accepted in cross examination that they would take the children with them. She also confirmed that the children would accompany them if they went out on Saturday. As far as other duties are concerned, we repeat our findings at paragraph 32 above. We therefore prefer the respondent’s evidence and find that the claimant was not required to work at weekends. Has the Claimant received her contractual pay

[34]This dispute was a difficult one for us to resolve as we had issues with the credibility of both parties in certain respects. There is a dispute between them as to the sums the claimant was actually paid and the method of payment. According to the written contracts we have seen, the claimant’s salary was initially £110 per week then increased to £120 in 2008. We accept the respondent’s evidence that the claimant had the contracts read to her and was aware of the figures contained therein, as we found in relation to her initial contract with VM Alexander.

[35]The claimant says that the salary figures in the contracts were not the amounts that she actually received and says regardless of what is written, she was told that she would be paid 30000 rupees a month and that this would be paid into her daughter’s account. She says that contrary to that agreement, the respondent was sending only 6000 rupees a month to the account. The claimant contends that she received no other income from the respondent.

[36]R1 contends that the claimant was paid the contractual sums set out in the written contracts and that, in accordance with her wishes, it was paid in 3 ways: i) sterling cash in the UK; ii) cash in rupees during holidays in India and; iii) bank transfers to Indian accounts. Indeed, R1 says that he has overpaid the claimant.

[37]It is common ground that over the period of employment, the respondent sent 863,000 rupees by bank transfer to accounts in India, mainly the claimant’s daughter, Bindu’s, account. Both parties say that the amount requested to be transferred from September 2011 was 20000 rupees a month. There is a slight difference between the parties’ as to what this equates to in sterling as they have used different conversion rates. However as the claimant has provided an online source for her rates, we have relied on those. We find therefore that the total figure in pounds sent by bank transfer over the course of the employment was £10,778.73, which clearly does not equate to the totality of the contractual sums agreed for the period.

[38]R1 has produced a schedule of payments which he claims to have created contemporaneously with events. However we have concerns about the provenance of this document. Firstly, the schedule for 2008 is based on the claimant’s salary between 11.10.08 and 31.12.08 being £110 per week. However, we have already referred to the 2008 contract that increased the claimant’s pay to £120 per week. The respondent told us that he was an auditor and treasurer and kept meticulous records. If he was reconciling the payments made to the claimant at the end of each year, as he contends, the fact that she had received an increase in salary a couple of months earlier would have been fresh in his mind at the time and so would have been reflected in the paperwork.

[39]R1 told us that the cash payments to the claimant were ad hoc and irregular in amount. In those circumstances, we are surprised that the reconciled figure at the end of each year is, for the large part, within a few pounds of what was said to have been agreed e.g. 2006 (£2); £2007 & £2009 (£6); 2010 (£3). [ 49-57] In the years where the difference recorded is larger, this is always a credit in the respondent’s favour rather than the claimant’s.

[40]This looks suspiciously contrived and our feeling is that the schedule was created long after the event, most likely for these proceedings, to provide a retrospective record of sums the respondents may or may not have paid. We therefore place little reliance on the document except to the extent that the sums recorded are evidenced elsewhere or otherwise agreed.

[41]In relation to the supposed cash payments set out in the schedule, R1 produced copies of his bank statements showing withdrawals in corresponding amounts. He contends that the withdrawn sums were given to the claimant. Given our view on the timing of the schedule’s creation, and in the absence of any receipts or payslips for the cash, it would have been near impossible for R1 to attribute any particular withdrawal as having been made on behalf of the claimant distinct from any other withdrawal.

[42]R1 opened a bank account in the Claimant’s name in 2006 and at various points in time paid money into the account by standing order. However the claimant did not use the account, apparently because she did not feel comfortable doing so; and none of the money in it was hers. R1 had full control of the account, which he was able to access online and did so. Between May 2006 and January 2007 R1 made regular standing order payments of £110, in line with the salary figure set out in the pre-2008 contracts. A lump sum payment of £3600 was transferred out by R1 on the 15 January 2007, leaving a balance of £30.99. [S9] The account was then dormant until August 2007 when R1 paid £1500 into the account and then resumed the £110 monthly credits. These continued until February 2008, when R1 made a lump sum withdrawal of £4000 leaving a balance on the account of £62.50. [S19] The account was again dormant for a period of time but became active again in late 2011 when sums in varying amounts were credited and withdrawn. [S53-60]

[43]The periods of activity on the account seemed to coincide with applications for visa renewals and R1 confirmed in evidence that the bank statements were submitted with such applications in 2007 and 2008. The question however is whether this was done in order to deceive the Home Office into believing the claimant was paid £110 a week when she was not or; was it to assist the visa renewal process. Either way, the picture the respondent sought to portray was a misleading one.

[44]That is not to say, however, that the respondents did not give the claimant any cash. The respondents difficulty is that it has no documentary evidence to show what, if anything, was paid hence its attempt to create these retrospectively.

[45]The claimant’s evidence on what she received in salary was contradictory. At paragraph 15 of the particulars of claim, she says that on payment of her first salary, only 6000 rupees was paid into her daughters account; not 30000 as R1 claims. When the claimant was asked in cross examination “Are you saying your daughter has never been sent 30000 rupees?, her response was: “Never”. However R1’s bank statement shows that 30000 rupees was sent by bank transfer to the claimant’s daughter’s account on 8.2.06.

[46]Having asserted in her witness statement that she was not given any cash by the Respondent on her trips to India, she conceded in cross examination to being given some cash but significantly less than the amounts claimed. So when it was put to her that she was given 70000 rupees on 22 February before her trip, she claimed it was around 1000 rupees, and when it was put to her that on 28 October 2007 the respondent gave her 100,000 rupees, she said she was only given 1000 rupees. Yet she does not refer to any of these payments in her witness statement.

[47]In relation to many of the disputed facts, we have preferred the respondents’ evidence. That is because the claimant’s account of her treatment has at times been exaggerated beyond credibility or has been contradictory. Throughout her evidence she sought to portray the respondents in the worst possible light and made no concessions to this at all. Even benign or positive acts by the respondents were given a negative spin in order to diminish their effect. For example, when it was put to her that the respondents bought her presents every Christmas, she agreed but added that she did not consider them to be presents.

[48]We have reviewed the emails between the claimant and respondents dated 3.4.13 and 24.4.13. We are conscious that by this stage the claimant was acting under the guidance and assistance of others. Her email, though addressed to the respondents was, we would suggest, written with a wider audience in mind. In the emails, the claimant demands 6 months arrears of pay, which she calculates as 120,000 rupees, and threatens legal action if her demands are not met. [439A] In his response, R1 sets out the electronic payments transferred to India. [439C] It was submitted on behalf of the claimant that the absence of any reference to cash payments by the claimant or respondent supports the claimant’s case that she only received bank transfer payments. We disagree. The claimant’s demand for outstanding wages relates specifically to electronic transfers agreed in 2011 and the Respondent has replied accordingly. There would be no need for either of them to refer to cash payments if they were being paid, as agreed, just as there was no need for either of them to refer to the electronic transfers that occurred prior to 2011.

[49]Looking at all of this evidence in the round, and having, with great difficulty, weighed up the relative credibility of the parties, we find the claimant’s assertion that she received no cash at all during her 8 years with the Respondent highly implausible. Whilst we are not able to say with any great certainty that she received all her contractual pay, we find, on balance of probabilities, that she did. Indefinite leave to remain application

[50]In 2012 the respondent applied to the Home Office for the claimant’s permanent residence in the UK. This was initially rejected because the claimant had been absent from the UK for 8 months in 2008 thereby breaking the continuous 5 year residence requirement. [433] This was the time that the claimant was in India looking after her mother, who subsequently died. The respondent lodged an appeal against the refusal but the appeal was also rejected. Such action by the respondents appears to us inconsistent with the picture presented by the claimant of an employer keeping her in domestic servitude, using the leverage of her immigration status as a means of control. On the contrary, this was beneficial to her and something that she desired. Yet her evidence was that this was all done without her knowledge. We don’t accept that. The claimant’s mother’s death certificate was presented as documentary evidence in support of that appeal and was sent to R1 by the claimant’s brother. The claimant says that the respondent had told her it was needed in order to apply for her visa renewal but we are satisfied that it was for the appeal and that she and her brother were aware of this. This is another example of the claimant doing her level best to ensure that the respondent should not be seen in anything other than a bad light. Allegations of Abuse

[51]The claimant alleges that she was verbally abused by the respondents and relies on this as the last straw act leading to her resigning by walking out on 23 April 2013. The allegations are denied by the respondents.

[52]At paragraph 42 of her statement the claimant says that she felt treated like a street dog and she says that this was because she was constantly told off and shouted at. In her supplementary statement, prepared in response to the respondent’s statements, this has evolved to her not just feeling like a street dog, but being referred to as a servant dog or working dog by R2. At paragraph 182 of her statement, she claims that in a phone call from India, R1 threatened to slap her face because she had asked him for salary she said was owed. Needless to say, the respondents deny the allegations. R1 contends that no such call took place.

[53]In her statement to Kalayaan, the claimant alleges that her employers (a reference to both R1 and R2) on a few occasions raised their hands to her as if they were going to hit her. In her letter at 439 of the bundle, she says that she is worried about R1’s temper and possible physical abuse. When this was explored in cross examination, she accepted that R1 had never raised his hand to her and she was unable to give any examples of occasions when he had lost his temper with her. It is clear from the final paragraph that the claimant was thinking about leaving her employment and we consider that its purpose was to paint a particular picture, in preparation for that eventuality.

[54]The allegations of verbal abuse do not sit comfortably with our other findings and once again, the inconsistencies in the claimant’s evidence and exaggerated nature of the allegations causes us to prefer the respondents’ account. Resignation

[55]On the 23 April 2013, the claimant walked out of her employment with the respondents. The day before, she claims she had an argument with R1. Her account of the events of 22 April 2013 are recited at paragraph 194 of her statement. She claims, among other things, that R1 quizzed her about her whereabouts when he and R2 had been in India, accused her of bringing a man to the house and asked her where she had been going for a job. The claimant further alleges that R1 told her that she was not to stay in his house a second longer. She said that she then asked to be sent home and requested her passport, money and a ticket but was told by R1 that he did not know where her passport was. She said that R2 was present and interjected with words of abuse.

[56]The claimant’s account was completely rejected by the respondents. R1 said that 22 April 2013 was the date he found out that the appeal against the refusal of the claimant’s application for indefinite leave to remain had been rejected and that when he told her she became angry and accused him of lying and withholding her passport.

[57]The claimant denied in evidence that there had been any conversation about an appeal and contended that she only became aware of the appeal subsequently through her solicitors. We have difficulty with this evidence as the claimant also told us that she was unaware that an application for indefinite leave to remain had been made in the first place yet we have found that she was. We find that she was also aware of the appeal and we accept R1’s evidence on this. In those circumstances, we consider it unlikely that R1 would have said to her that he did not know where her passport was, as she claims.

[58]On this same day, the respondents discovered a conversation, recorded on their landline, between the claimant and her daughter, Bindu. Although the claimant claims in her statement that the respondents had recorded her, as they were in India at the time of the conversation, the more likely explanation is that that the claimant recorded herself inadvertently. We have been provided with a transcript of the recording and although the contents are not challenged, the interpretation is. [ 436-438 ]

[59]The respondents say that from the transcript, they became aware that the claimant had started working for someone else and had lied to her new employers by claiming that her granddaughter, Achu, was her daughter who she was supporting financially. The respondents claim that she asked Bindu to back up her lie so that she could get a bigger salary from her new employers. The transcript does not transcribe the whole of the conversation as at various points the recording is unclear. As a result, it was difficult for us to properly consider the disjointed bits of the conversation in context. Whilst we were able to discern the conversation about Achu (her relationship to the claimant like a number of the claimant’s family relationships is ambiguous) it was far from clear whether the claimant had commenced work elsewhere. What we can say however is that she appeared to be preparing to leave the respondent. There is further support for this in her letter to the respondent of 3 April 2013 which, as well as containing a threat of legal action for monies owed, states: “I will not stay in your home either as I am worried about your temper and possible physical abuse”. [439A]. Regardless of the truth of that statement, it is difficult to see how there could be any way back from that allegation.

[60]We know from the claimant’s evidence that she had an alternative place to go as she had become acquainted with Gana Nathan, apparently a friend of a friend of her brother, in March 2013 and met with him and his wife, while the respondents were in India in April 13. It was Gana Nathan who drafted the letter of 3 April on the claimant’s behalf and it was to his and his wife’s house that she went following her resignation. In the bundle is a “To Whom It May Concern” letter from Gana Nathan dated 25 September 2013 confirming that the claimant was staying with his family and had been since 25 April 2013 (we wonder whether that date is correct given the claimant’s evidence that she went straight to his house after leaving the respondents). The letter also states that the claimant was being provided with food, accommodation and £75 per month to cover her basic needs and travel expenses. [391] The respondents contend that Gana Nathan and his wife are in fact the new employers discussed by the claimant and Bindu during their recorded telephone conversation. We note from paragraph 21 of Gana Nathan’s statement that he and his wife had discussed and agreed that they could offer the claimant work and that they had made her a formal job offer, though he does not say when the offer was made.

[61]The respondents say that they did not challenge the claimant about the recording at the time or at all and she accepted in evidence that this was the case. If R1 had quizzed her about her other job on the 22 April, as she claims, it is surprising that he did not at the same time confront her about the recording.

[62]Having weighed up the conflicting accounts, on balance, we prefer the evidence of the respondent on the events of 22 April 2013.

[63]The following day, 23 April 2013, the claimant left the respondent’s house never to return. She claims that this followed an incident where she was shouted at and verbally abused by R2 who told her to get out of the house. R2 on her part claims that there was no argument or discussion and that the claimant left the house through the garden unannounced. The claimant’s version of events is very similar to her account of the 22 April. We rejected that account and we also reject this one. We prefer R2’s evidence. Annual Leave

[64]The Claimant contends that she did not receive paid leave during her employment Annual leave is not referred to in her contractual documentation so the default position is the statutory provisions at section 13 WTR, which entitles her to 5.6 weeks paid leave per year.

[65]In order for the leave provisions to have been breached, the claimant must either have been refused leave or have taken the leave and not been paid for it. There was no evidence before us that the respondent ever refused the claimant leave. Indeed we know that she went to India with the respondents and on her own a number of times, staying for 8 months on one occasion.

[66]The claimant’s position on whether she was paid during leave is tied in with her evidence on pay generally, which we have not accepted. We have preferred the respondents’ evidence, which was, that the claimant was given cash in rupees whenever she was on holiday in India.

[67]The claim in respect of leave is limited to the final year of employment. For the purposes of Regulation 14, Working Time Regulations 1998, the claimant’s leave year ran from 14 November each year (the anniversary of her commencement of employment) so the proportion of the leave year up to termination was between 14 November 2012 – 23 April 2013. Submissions

[68]The parties presented detailed written submissions, which they spoke to. I do not propose to set them out here but they have been and carefully considered along with the various authorities presented. The Law Constructive Dismissal

The Law

[69]Section 95(1)(c) of the Employment Rights Act 1996 (ERA) provides that an employee shall be taken to be dismissed by his employer where the employee terminates the contract, with or without notice, in circumstances in which he is entitled to do so by reason of the employer’s conduct.

[70]The case; Western Excavating Limited v Sharp

1978 IRLR 27

provides that an employer is entitled to treat him or herself as constructively dismissed if the employer is guilty of conduct which is a significant breach of the contract or which shows that the employer no longer intends to be bound by one or more of its essential terms. The breach or breaches must be the effective cause of a resignation and the employee must not affirm the contract.

[71]The case: Malik v Bank of Credit and Commerce International SA

1997 IRLR 462

provides that the implied term of trust and confidence is breached where an employer, without reasonable or proper cause, conducts itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

[72]In London Borough of Waltham Forest v Omilaju

[2005] ICR 481

, the Court of Appeal stated that a final straw should be an act in a series whose cumulative effect amounts to a breach of trust and confidence and it must contribute to the breach. An entirely innocuous act on the part of an employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his empIoyer. The test of whether the employee’s trust and confidence has been undermined is objective. National Minimum Wage

[73]Section 1(1) of the National Minimum Wage Act 1998 ( NMW ) provides that 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.

[74]Section 2(2)(a)(ii) National Minimum Wage Regulations 1999 (NMWR), since superseded by section 57 of the National Minimum Age Act 2015, provides that the national minimum wage is not payable for work relating to the employer’s family household done by a worker who is not a member of the family but is treated as such, particularly with regards to the provision of accommodation, meals, sharing of tasks and leisure activities. Unlawful Deduction of Wages

[75]Section 13 ERA provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised by virtue of a statutory provision or a relevant provision of the worker’s contract or the worker has previously signified in writing his agreement or consent to the deduction. Working Time

[76]Regulation 11 Working time Regulations 1998 (WTR) provides that a worker is entitled to an uninterrupted rest period of not less than 24 hours in each 7 day period during which he works for his employer.

[77]Regulation 13 and 13A WTR provides that a worker is entitled to 5.6 weeks annual leave in each leave year.

[78]Regulation 14 WTR provides that where a worker’s employment terminate during the course of his leave year, he is entitled to payment in lieu of proportion of the accrued leave which is untaken.

Conclusions

[79]Having considered our findings of fact, the relevant law and the parties submissions, we have come to the following conclusions on the agreed issues: Constructive Dismissal

[80]The Claimant relied on 6 separate matters as individually or cumulatively constituting a breach of her contract and our conclusions on these is below: Withholding of passporta. Based on our findings at paragraphs 13-17, this complaint is not made out. Failure to pay national minimum wage

b. Based on our findings at paragraphs 19-32 above, and having considered the the case: Nambalat v Taher and another, Udin v Chamsi-Pasha and others

[2012] EWCA Civ 1249

we find that the claimant was treated as a member of the family for the purposes of Regulation 2(2)(a)(ii) NMWR Regs 1999 and that the other provisions of Regulation 2(2)(a) are satisfied. In those circumstances, the respondents were exempt from paying the claimant the national minimum wage and did not breach her contract by failing to do so. Requiring the claimant to work onerous hours/failure to give weekly rest breaks

c. The claimant’s contention that she worked 18 hours a day, 7 days a week is rejected for the reasons at paragraphs 29-31 of our findings. In determining the claimant’s likely hours of work, we have worked on the basis that her contractual duties were limited to childcare and tasks associated with this i.e. feeding, bathing, dressing, school run etc. we have identified those duties, as best we can, from the claimant’s Schedule of Activities and applied, what we consider to be, a reasonable amount of time for their completion. Having done so, we have concluded that the claimant would have spent an average of 6 hours a day on her duties and was not required to perform these at the weekend. The average hours take into account the birth of the 2 additional children, Johann and Megan, though we don’t believe that this impacted significantly on the claimant’s hours as by the time they were born, Ryan had started school full time and R2 undertook most of their childcare while on maternity leave. As the claimant was not required to work at the weekend, it follows that she was not deprived of her Reg 11 WTR weekly rest break. Failure to give the Claimant paid time off

d. For the reasons at paragraphs 65-66 above, this complaint is not made out. Subjecting the Claimant to verbal abuse

e. For the reasons at paragraphs 51-54 above, this complaint is not made out.

[81]Given our conclusions at paragraph 80, it follows that the claimant has not proved, on balance of probability, that there has been a fundamental breach of her contract. Her constructive dismissal claim therefore fails at this point. Did the respondent make an unlawful deduction from the Claimant’s wages by not paying her contractual pay throughout her employment

[82]This complaint was mainly predicated on the claimant being contractually entitled to the national minimum wage, which we have found not to be the case. Further, based on our findings at paragraphs 34-49 above, the unlawful deduction of wages complaint is not made out. Breach of Reg 14 WTR

[83]It was submitted for the respondents that the claimant was on leave between 24 March -19 April 2013 as she was not required to carry out any work. This was the period that the claimant was in the house on her own because the respondents and their children were in India. The claimant had not chosen or requested to take that time as leave. It would have been open to the respondents to designate that period as leave in advance but they did not do so. As such, they cannot now seek to designate it as leave retrospectively. We are therefore satisfied that the claimant did not take any leave in her final year.

[84]At the date of termination, the claimant had worked 23 weeks of her leave year. Her weekly wage was £120 so her pay for leave accrued up to termination is: £120 x 5.6 wks x 23/52 = £297.23. Failure to provide particulars of employment

[85]The various contracts given to the claimant contain very basic details of her employment (i.e. job title, duties, salary and notice provisions). This falls far short of the requirements of section 1 of the Employment Rights Act 1996 as most of the prescribed information required to be given to employees is missing. For instance, there is no information about hours, holiday, sickness provisions or disciplinary rules. We therefore find that the respondent failed to provide the claimant with a statement of particulars of employment and the claim under section 38 Employment Act 2002 is made out. The Tribunal awards the claimant 2 weeks’ pay totalling £240, this being the minimum award available and there being no just and equitable reasons to justify awarding the higher figure of 4 weeks pay. Failure to provide Payslips

[86]It is common ground and we hereby declare that the respondent did not provide the Claimant with payslips throughout her employment. There is no award in relation to this breach. Judgment

[87]The unanimous judgment of the Tribunal is that:a. The constructive dismissal claim fails and is dismissed

b. The claimant is not entitled to the national minimum wage by virtue of section 2(2) of the National Minimum Wage Regulations 1999.

c. The claimant is entitled to holiday pay of £297.23 in respect of her final leave year. All other claims for unlawful deduction of wages fail and are dismissed.

d. The respondent failed to provide the claimant with a statement of employment particulars. The Tribunal awards 2 weeks pay in the sum of £240.

e. The respondents failed to provide the claimant with payslips in breach of section 8 Employment Rights Act 1996.

f. The respondents are ordered to pay the claimant the total sum of £537.23 ________________________ Employment Judge Balogun Date: 3 February 2017 Case Number: 2361118/2013 (v) 1 EMPLOYMENT TRIBUNALS Claimant: Ms K P K Puthenveettil Respondents:

(1) Mr S Alexander

(2) Ms R George

(3) Secretary of State for Business, Energy and Industrial Strategy Heard at: London South Employment Tribunal On: 20, 21, 22 and 24 July 2020 Before: Regional Employment Judge Freer Members Ms J Forecast Ms C Brown Representation Claimant: Ms A Reindorf, Counsel First and Second Respondents: In person Third Respondent: No attendance

[88]However, what is missing is any evidence from the Third Respondent to demonstrate that this was actually an aim adopted by the Government and/or the Secretary of State. There has been no material evidence provided in support. The only evidence that goes to the point is the policy note which the Tribunal concludes carries little or no weight for the reasons mentioned earlier: it is undated and in particular, it is unattributed. For example, there is no explanation of the level of involvement with the Secretary of State, or the materials or advice used to substantiate the general comments made. Those matters could have been addressed, for example, by a short witness statement. As it stands, without the Secretary of State’s further involvement in these proceedings, the document raises more questions than it answers.

[89]The First and Second Respondents also rely upon the ‘policy document’ produced by the Third Respondent. But of course they cannot shed any further light on its provenance. However they do cite the remaining part of the address to Parliament by Ian McCartney as set out in the policy note (above): “I should make it clear, however, that the exemption applies only if the worker is treated as a member of the employer's family, especially in the provision of accommodation and meals, and the sharing of tasks and leisure activities. If au pairs, or any other workers, live in their employer's household but do not enjoy the benefits of being treated as part of the family, the national minimum wage will Case Number: 2361118/2013 (v) 16 apply. I believe that that approach is balanced and family friendly and encourages fair treatment of workers in the home”. However, in so far as the aim is to encourage fair treatment of workers in the home, this does not (and cannot) add further to the aims as pleaded by the Secretary of State.

[90]Therefore, although the Tribunal concludes that the second aim on the face of it can amount to a legitimate aim, the Tribunal has received no reliable evidence to demonstrate that it was actually an aim adopted by the Secretary of State at the introduction of Reg 2(2), during the course of the Claimant’s employment, or even retrospectively.

[91]The Secretary of State has not provided any material evidence to demonstrate that the second aim (or indeed the first, if it can be established to be an aim) amounts to a social policy aim that corresponds to a real need which was in fact pursued by the Regulation at the relevant time, or at all.

[92]The Tribunal accepts the Claimant’s submission that the disparate impact of Reg 2(2) is serious because the statutory right to be paid the national minimum wage is removed from more women than men.

[93]Therefore to demonstrate that the attainment of the aim/s weighs more heavily in the balance than the discriminatory effect of the provision, the Tribunal would expect to see substantive cogent evidence relating to proportionality.

[94]The First and Second Respondent further cite the ‘policy note’ with specific regard to proportionality. It states: “As noted above, Regulation 2(2) is not a blanket exemption. Protections are built into it as it only applies where four conditions are met. These aim to ensure that the exemption only applies where the reality of the situation is that someone is being treated as a member of the family. It should also be noted that section 28 of the NMW Act 1998 provides for a reversal of the burden of proof. In the event of a dispute, the assumption is that the worker qualifies for the NMW and that they have been paid less than the NMW”.

[95]As stated above, the Tribunal attaches little weight to the policy note and has received no argument on proportionality from the Third Respondent. The Tribunal can only reach a decision on the material and representations made to it and the content of the policy note does not address proportionality in any meaningful way. The statement of matters in the policy document alone with no evidence or analysis of their efficacy is substantially insufficient for the purposes of any justification defence.

[96]As submitted on behalf of the Claimant, no explanation is provided, for example, of why Reg 2(2) is a proportionate mechanism by which to “reflect the unusual relationship” in a consistent and systematic manner, or that it is a reasonably necessary mechanism by which to do so.

[97]The second aim seeks to facilitate the return to employment of one category of workers by denying to another category of workers the statutory right to be paid. Therefore where one would expect, or indeed require, some degree of cogent Case Number: 2361118/2013 (v) 17 evidence on proportionality and the balance of competing interests, the Tribunal has received next to nothing.

[98]In comparison the Claimant has provided detailed evidence and supporting legal argument to demonstrate that the four statutory conditions required to achieve family worker status and the reversal of the burden of proof provision have been ineffective to restrict the discriminatory effect of Reg 2(2). The Tribunal refers to the evidence in particular of Professor Cox and Ms Duncan-Bosu.

[99]If the aims relate to an attempted quid pro quo between the interests of family employers and au pairs, although the Claimant does not have to show that the aim could have been achieved in a different way, a less discriminatory method of achieving that aim could be to adopt a framework similar to that developed by the British Au Pair Association, as set out in evidence by Ms Haworth-Wood.

[100]There have been some opportunities for the Government to revisit and record the rationale for the Regulation, such as the discontinuance of the au pair visa scheme in 2008, when there is likely to have been some sort of review; Employment Tribunal decisions that highlighted a lack of clarity in the Regulations; and ATLEU sending the Secretary of State the pleadings in every migrant domestic worker case in which they acted after 2011 where Reg2(2) was relied upon by the Respondent. There have been further opportunities after the Claimant’s employment ended, such as: the Low Pay Commission report of March 2014 (pages 1190-1501 of the bundle); a Government announcement by Vince Cable in March 2014, in response to the Low Pay Commission report, of an intention to “take the next available opportunity to legislate and clarify the entitlement of migrant domestic workers to the National Minimum Wage” (page 1501B of the bundle); the consultation on draft Consolidated National Minimum Wage Regulations in 2014 (pages 2371-2404 of the bundle), where three trade unions recommended the abolition of the family worker exemption; the Low Pay Commission report of March 2015, which expressly stated: “we continue to believe that the difficulties faced by [migrant domestic workers] can only be satisfactorily resolved through a review of the application of the family worker exemption”; the introduction of the new Regulation 57 in the 2015 Regulations which, after a consultation process, substantially re-enacted Reg 2(2); and more court and tribunal decisions.

[101]The Tribunal considers that these are matters that have not suddenly arisen, they are factors that impact on the issue of proportionate means and make it increasingly difficult to demonstrate proportionality between the aims (even if they are both accepted as being legitimate aims) and the means of achieving them.

[102]In assessing appropriateness, the Tribunal should consider whether the measure “genuinely reflects a concern to attain [the aim] in a consistent and systematic manner” (see Petersen -v- Berufungsausschuss für Zahnärtzte für den Bezirk Westfalenlippe (

Case C-341/08

)

[2010] 2 CMLR 31

CJEU). The Respondent may not rely upon “mere generalisations concerning the capacity of a specific measure to contribute to employment policy, labour market or vocational training objectives” as those do not “constitute evidence on the basis Case Number: 2361118/2013 (v) 18 of which it could reasonably be considered that the means chosen are suitable for achieving that aim” (see R (Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform (

Case C-388/07

)

[2009] ICR 1080

CJEU). The Secretary of State must show that there has been a balance of the discriminatory effect of the measure against the social aims sought to be pursued (whether at the time that the measure was adopted or subsequently).

[103]Having considered all those matters, the Tribunal concludes on the evidence as presented there was no proportionate means of achieving a legitimate aim.

[104]Once the Tribunal reaches the decision that the effect of Reg 2(2) is that that it is indirectly discriminatory, the Claimant argues that Reg 2(2) should be disapplied because in proceedings between private individuals, such as the present case, the Tribunal is not only empowered but bound to disapply legislation which is in conflict with directly effective EU law and cannot be read consistently with it.

[105]As set out above under in the summary of the law, the non-discrimination principle is repeated in EU law and is done so expressly with regard to pay.

[106]The First and Second Respondent argue that the Recast Directive does not have horizontal direct effect against private individuals, and therefore cannot be used to disapply Reg 2(2) in a claim against them and relies in support upon R -v- Secretary of State for Employment ex p Seymour-Smith and Perez (No 2)

[2000] ICR 244

HL and Faccini Dori -v- RecrebSrl (case C 91/92)

[1994] ECR I-3355

[107]This is partly correct because, in general, only Treaty provisions and EU Regulations have horizontal direct effect, such that they can be relied upon in litigation between private parties in domestic courts. Horizontal effect is not ordinarily extended to Directives.

[108]However, as set out above, the principle of non-discrimination is a general principle of European Community law and therefore has horizontal direct effect in all cases that fall within the scope of EU law. The Charter of Fundamental Rights of the European Union, Article 157 of the Treaty on the Functioning of the European Union, and the Recast Directive are simply different expressions of the same non-discrimination principle - plus Article 157 is directly effective.

[109]The Tribunal concludes that in the exercise of its statutory jurisdiction, it is bound by 2(1) of the European Communities Act 1972 to apply directly effective Community law and must override any rule of national law which is found to be in conflict with directly effective EU law. Therefore, the Tribunal must interpret national law in accordance with the wording and purpose of Community law and in particular in this case, the principle of non-discrimination.

[110]Post-Brexit and the repeal of the European Communities Act 1972, under the provisions of section 3(1) of the European Union (Withdrawal) Act 2018, as amended, direct EU legislation that was operative immediately before exit day Case Number: 2361118/2013 (v) 19 still forms part of domestic law for the duration of the implementation period and CJEU case law therefore also continues to bind domestic courts and tribunals.

[111]Although section 5(1) of the European Union (Withdrawal) Act 2018 provides that: “the principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day” (at the end of the implementation period), section 5(2) confirms that: “Accordingly, the principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule passed or made before exit day”.

[112]Similarly, although section 5(4) states that The Charter of Fundamental Rights will no longer be part of domestic law on or after exit day, section 5(5) provides that this “does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles)”.

[113]The Tribunal concludes that there is no purposive reading that can be made, or words that can be implied, necessary to make Reg 2(2) compatible with EU rights. It would require the Tribunal to redesign an alternative legislative scheme.

[114]As a consequence the Tribunal is under a duty to disapply Reg 2(2) as incompatible with national legislation and it is thereby ineffective.

[115]It should also be noted that the Third Respondent, in both its Response at paragraph 4 and its letter of 24 January 2019, does not oppose disapplication once is has been established that regulation 2(2) has given rise to unjustified indirect discrimination.

[116]Therefore the Tribunal’s judgment is that Reg 2(2) of the Minimum Wage Regulations 1999 is disapplied.

[117]The disapplication of Reg 2(2) is necessarily with regard these proceedings on the evidence produced to this Tribunal. As for any wider disapplication, this is a Tribunal of first instance and its decision is not binding on other courts or tribunals, although persuasive to some. It is therefore possible that a different conclusion could be produced in another tribunal, particularly on a case with different facts.

[118]However, this Tribunal would observe that the family worker exemption almost inescapably applies to more women than men and places women at a particular disadvantage when compared to men. The issue appears to turn on justification. Here the Secretary of State ultimately chose a strategy of limited engagement with the matter. The future wider implications are therefore essentially a matter for the Secretary of State. However, as the discriminatory effect of Reg 2(2) is significant and therefore also potentially Reg 57 of the 2015 Regulations, if there is any future case one might reasonably expect to see cogent and substantial evidence of the balancing exercise undertaken between the discriminatory effect Case Number: 2361118/2013 (v) 20 and the proportionate means of achieving the legitimate aim. This would likely include consideration of the special vulnerability of overseas domestic workers highlighted in the Ewins Report above and perhaps a less discriminatory approach as identified in the ILO Domestic Workers Convention of the payment to persons that would have fallen under the family worker exemption of limited remuneration in the form of payments in kind, in respect of which the monetary value attributed to them is fair and reasonable, which also could avoid any inaccurate implication that domestic work is of limited or little value.

[119]The provisions of the National Minimum Wage Regulations 1999 apply to the Claimant and the matter will be listed for consideration of the hours worked by the Claimant so a calculation of the sums owed can be made. The Claimant’s application for Costs against the Third Respondent

[120]The Claimant presented her claim to the Tribunal on 22 July 2013.

[121]It had been agreed in another matter that if the lawfulness of the family worker exemption was to be challenged the Secretary of State would be notified and would seek to be joined to proceedings once a finding had been made that the exemption applied.

[122]On 8 October 2013 the Third Respondent was notified of the Claimant’s claim. On 17 November 2013 the Third Respondent confirmed that it did not wish to take part in the proceedings until a finding had been made as to whether the exemption applied.

[123]The Claimant’s claim was dismissed before the lawfulness of the family worker exemption was determined. An application was made to the Employment Appeal Tribunal in order that the claim could be reinstated. The Third Respondent took part in those proceedings and argued that the issue of the lawfulness of the exemption should be remitted back to the Tribunal at which stage they would seek to be formally joined to proceedings.

[124]The Third Respondent was joined to the proceedings at its own request on 01 June 2018 and case management directions were made to bring the matter to a full hearing that was listed for 4-6 February 2019.

[125]On 24 January 2019, the Government Legal Department advised that they had decided not to adduce witness evidence or attend the hearing (as set out above). This caused the hearing to be postponed to 28-30 April 2020, which was subsequently relisted to this hearing.

[126]The Respondent had been placed on notice by the Tribunal that the Claimant’s costs application would be considered at the end of this hearing. The Third Respondent wrote to the Tribunal and confirmed that, in the interests of saving further costs, it would not be appearing at the hearing but instead made brief submissions regarding the Claimant’s application (page 21 of the costs application bundle). The Tribunal has taken these into account. Case Number: 2361118/2013 (v) 21

[127]The letter from the Government Legal Department in part sets out reasons for the decision to withdraw, but the question is not whether the decision itself to withdraw from proceedings was unreasonable, it is whether the Third Respondent acted unreasonably in the conduct of the proceedings.

[128]The Tribunal concludes that the Third Respondent had ample opportunity prior to January 2019 to consider both its approach to this litigation and the level of involvement it wished to take, most particularly from the time it asked to be notified of proceedings, become involved in the EAT application and apply to be joined as a party to the action specifically for the purposes of having an opportunity to address the Reg 2(2) issue.

[129]The effective withdrawal from proceedings so close to the hearing caused its postponement, resulted in some of the preparatory directions being taken over by the Claimant’s representatives, increased correspondence and required an additional preliminary hearing. Had the Third Respondent considered its position in good time, the incurring of these costs could have been avoided. The Tribunal further accepts the Claimant’s submission that the Claimant’s case could have been considered in one go had the Secretary of State not intervened. The case was approached in a different manner because of the Secretary of State’s involvement.

[130]Following Barnsley Metropolitan Borough Council -v- Yerrakalva

[2011] EWCACiv 1255

, the Tribunal has considered the whole picture of what happened in the case and concludes that the Third Respondent acted unreasonably in the conduct of the proceedings and chooses to exercise its discretion and to make an order for costs.

[131]When making a costs order on the ground of unreasonable conduct, there is no requirement to link the award causally to particular costs which have been incurred as a result of the unreasonable conduct (McPherson -v- BNP Paribas (London Branch)

[2004] EWCA Civ 569

: “The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular costs to be incurred”.

[132]The Tribunal has been taken to the Claimant’s schedule of costs and is satisfied that these costs have been reasonably incurred and are reasonable in amount. The Claimant has restricted its claim for costs to work arising from the Third Respondent’s intervention in proceedings and has excluded costs arising from evidence gathering that would have been incurred in any event. The case has been conducted under a legal aid certificate that covers the work done in respect of which the costs are claimed. In all the circumstances the Tribunal concludes that the Third Respondent shall pay to the Claimant the sum of £5,582.38. Case Number: 2361118/2013 (v) 22 ____________________________ Regional Employment Judge Freer Date: 14 December 2020 Case Number: 2361118/2013 EMPLOYMENT TRIBUNALS Claimant: Ms K P K Puthenveettil Respondents:(1) Mr S A Thukalil

(2) Ms R G Thukalil

(3) Secretary of State for Business and Trade Heard at: London South Employment Tribunal On: 25 March 2024 Before: Regional Employment Judge Freer Members Ms J Forecast Ms C Brown Representation Claimant: Not attending First and Second Respondents: In person Third Respondent: Mr S Healy, Counsel

Conclusions

[1]These are the written reasons for the unanimous judgment of the Tribunal sent to the parties on 26 March 2024 that the application made by the First and Second Respondents against the Third Respondent for a preparation time order is granted and the Third Respondent shall pay to the First and Second Respondents combined the sum of £3,440.

[2]These reasons are produced at the request of the First and Second Respondents.

[3]The name of the Third Respondent was amended from The Secretary of State for Business, Energy and Industrial Strategy to the Secretary of State for Business and Trade,

[4]This is an application for a preparation time order by the First and Second Respondents against the Third Respondent.

[5]The relevant Tribunal rules are 76 and 79 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Rule 76 provides: Case Number: 2361118/2013 2 “When a costs order or a preparation time order may or shall be made(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that – (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success; or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.

(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party. . . “

[6]Rule 79 states: The amount of a preparation time order 79(1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of – (a) information provided by the receiving party on time spent falling within rule 75(2) above; and (b) the Tribunal’s own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.

(2) The hourly rate is £33 and increases on 6 April each year by £1.

(3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2).

[7]A summary of the background to this matter is set out in paragraphs 7 to 15 of the decision from the substantive hearing: 7) The Claimant travelled to the UK from India in July 2005 with the First Respondent’s father. She was employed by the First and Second Respondents as a domestic worker in their home in London from 14 November 2005 until her resignation on 23 April 2013.

[8]By a claim form presented to the Tribunal on 22 July 2013 the Claimant commenced claims against the First and Second Respondents of unfair dismissal and unauthorised deductions from wages. Case Number: 2361118/2013 3

[9]The Claimant pursued the unauthorised deduction from wages claim relying upon the level of pay of the national minimum wage. Her contractual rate of pay was £110 per week rising to £120 per week in 2008. The First and Second Respondents relied in defence upon the “family worker exemption” contained in Regulation 2(2) of the National Minimum Wage Regulations 1999 (“Reg 2(2)”). The Claimant argued that Reg 2(2) was unlawful and should be disapplied.

[10]The Third Respondent was joined as a party to the action by an Order dated 01 June 2018 upon a request from the Government Legal Department dated 29 May 2018.

[11]During proceedings it was agreed that the Tribunal should first decide whether Reg 2(2) applied to the Claimant’s employment at all and if so, then to determine the Claimant’s challenge to Reg 2(2) at a separate hearing.

[12]From a hearing on the application of Reg 2(2) a judgment on liability was sent to the parties on 11 February 2017. The judgment concluded that Reg 2(2) did apply to the Claimant’s employment and that she was therefore not entitled to payment of the national minimum wage.

[13]The Claimant appealed against that decision and the Employment Appeal Tribunal remitted the matter back to a newly constituted Tribunal to consider three main issues of the lawfulness and disapplication of Reg 2(2); the number of hours of housework performed by the Claimant; and whether that was voluntary, or contractual as a matter of custom and practice or otherwise.

[14]At a Preliminary Hearing on 7 June 2018 the Reg 2(2) matter was listed for a full merits hearing with a direction that the issue of the Claimant’s hours of work would be decided at a later date, if appropriate.

[15]By letter dated 24 January 2019, the Secretary of State informed the Tribunal and the parties that they no longer wished to participate in the proceedings. 8. On 17 November 2013 the Treasury Solicitor had written to the Employment Tribunal on behalf of the Third Respondent in respect of the Regulation 2(2) issue: “I write to set out the approach preferred by the Secretary of State for BIS in cases where the validity of Regulation 2(2) is challenged on the basis of incompatibility with Article 157 of the Consolidated Version of the Treaty on the Functioning of the European Union (2009) and the Directive of the European Parliament and of the Council 2006/54/EC (known as the recast Directive), The preferred approach is as follows: Case Number: 2361118/2013 4 1. That the Tribunal first determine whether or not the Respondent can successfully rely upon the family provision set out in Regulation 2(2); and 2. If the Tribunal determines that the Claimant’s work did fall within the family provision, that any challenge by the Claimant to the validity of that provision be held over to a further hearing, enabling the Secretary of State to be joined as a party and to make representations as to the appropriate handling of any challenge (which may vary depending on the circumstances of the case and the basis of such a challenge). The Secretary of State submits that this is a proportionate approach to the case management of such an issue”. 9. As et out above, the matter was subsequently heard by the Employment Tribunal whose decision was appealed to the Employment Tribunal. The appeal was successful and by a judgment sealed 06 February 2018 the matter was remitted to a differently constituted Employment Tribunal. 10. The Treasury Solicitor wrote to the Tribunal on 29 May 2018 in the following terms: “The approach adopted to the Secretary of State’s involvement was described in the EAT’s judgment (at paragraph 10) as follows: “the Tribunal should first decide whether Regulation 2(2) applied to the Claimant’s employment and, if so, at a subsequent hearing, should go on to determine the lawfulness challenge to that Regulation. That would enable the Secretary of State to participate in a subsequent hearing without having to take part in the earlier hearing that did not concern the Secretary of State.” In the event, despite finding that Regulation 2(2) NMWR applied to the Claimant’s employment, the Tribunal did not list a subsequent hearing. The EAT proceedings brought by the Claimant were prompted by that decision, with the consequence of the present remittal to the Tribunal. Because the Tribunal did not list a subsequent hearing, the Secretary of State was never added as a party to the Tribunal proceedings, although it was clearly in the contemplation of the parties and the Tribunal that he would be. Once the EAT proceedings had commenced, we made an application for the Secretary of State to be added to those proceedings and we attach a copy of that application. That application was successful and Simler J directed that the Secretary of State be added as a party to the EAT proceedings, stating (in an order of 28 July 2017) that: “The Secretary of State has policy responsibility for the National Minimum Wage Regulations and a direct interest in the issues raised on these appeals. He would be responsible for introducing any amending legislation should that be necessary. It would assist the Employment Appeal Tribunal in the determination of Case Number: 2361118/2013 5 these appeals”. In these circumstances, we would request that the Secretary of State be added as a party to these proceedings so that he can make representations as to the challenge to the validity of regulation 2(2) NMWR. We contend that the issues in this case, concerning a challenge to the validity of legislation, warrant the intervention of the Secretary of State who has a direct interest and is well-placed to assist Tribunal in determining the issues. The Secretary of State would also have responsibility for introducing any amendment of legislation that may be necessary should the legislation be successfully challenged. Throughout these proceedings, it was in the contemplation of all the parties that the Secretary of State would be joined at the appropriate time, and, with the Secretary of State already having been added to the EAT proceedings, we would submit that he should remain a party now that the proceedings are back before the Tribunal”. 11. By an order of the Tribunal dated 01 June 2018 the Secretary of State was duly added as a party to the action. 12. However, on 24 January 2019 the Secretary of State wrote to the Tribunal withdrawing participation from the proceedings: “Having carefully considered all of the circumstances, the Secretary of State has decided that he no longer wishes to participate in these proceedings and respectfully requests that the Tribunal and other parties take this letter as notification of the same. He does not intend to provide any witness evidence or appear at the hearing on 4-6 February 2019. For the avoidance of doubt, the Secretary of State makes no concessions, save as set out in paragraph 4 of his Response to the Amendment to the ET1 (namely that, if the family workers exemption is found to be indirectly discriminatory, it should be read consistently with EU law or disapplied in the Claimant’s case). However, subject to the position taken by the First and Second Respondents, the Secretary of State accepts that the consequence of his position is that, if the Claimant establishes that the family workers exemption ‘prima facie’ indirectly discriminated against her (that is to say, she proves all of the points set out in paragraph 1 of the List of Issues), the Tribunal should so find because the Claimant will have discharged the burden placed on her by section 19 of the Equality Act 2010, and the Secretary of State will not have attempted to discharge the burden placed on him by section 19(2)(d) of the Act”. 13. It is the decision of this Tribunal that, pursuant to rule 76, the First and Second Respondents have no claim for preparation time against the Third Respondent before 01 June 2018 when it became a party to the proceedings. 14. With regard to the Third Respondent’s letter of 17 November 2013, we conclude that this amounted to the Secretary of State setting out his position and preferred approach. It was not unreasonable for that to be suggested by the Case Number: 2361118/2013 6 Secretary of State and ultimately that suggestion need not have been adopted by the Employment Tribunal, particularly if the Clamant and the First and Second Respondents had challenged it. The case management of the proceedings was entirely a matter for the Tribunal. 15. We conclude that no issue of preparation time costs arises with regard to the period from 01 June 2018 to 23 January 2019 as the Secretary of State was a party and involved in the proceedings. There were no EAT costs and when an active party to the proceedings, the Third Respondent was involved in the work. There was no unreasonable conduct in proceedings by the Third Respondent in relation to the First and Second Respondents during this period.

[16]This Tribunal concludes that the Secretary of State’s decision to withdraw from participating in proceedings by the letter dated 24 January 2019 was not unreasonable. The content of the letter, particularly the final paragraph, sets out the Secretary of State’s position. It was not unreasonable for the Secretary of State to review his position and to set out the anticipated consequences of doing so.

[17]However, the withdrawal from participating raises timing issues. The full merits hearing was listed for 04-06 February 2019. The Secretary of State’s action was communicated on 24 January 2019 only seven working days before the full merits hearing.

[18]At paragraphs 127 to 129 of its substantive decision the Tribunal addressed the same circumstances in respect of the Claimant’s legal costs application: “127. The letter from the Government Legal Department in part sets out reasons for the decision to withdraw, but the question is not whether the decision itself to withdraw from proceedings was unreasonable, it is whether the Third Respondent acted unreasonably in the conduct of the proceedings.128. The Tribunal concludes that the Third Respondent had ample opportunity prior to January 2019 to consider both its approach to this litigation and the level of involvement it wished to take, most particularly from the time it asked to be notified of proceedings, become involved in the EAT application and apply to be joined as a party to the action specifically for the purposes of having an opportunity to address the Reg 2(2) issue.

129. The effective withdrawal from proceedings so close to the hearing caused its postponement, resulted in some of the preparatory directions being taken over by the Claimant’s representatives, increased correspondence and required an additional preliminary hearing. Had the Third Respondent considered its position in good time, the incurring of these costs could have been avoided. The Tribunal further accepts the Claimant’s submission that the Claimant’s case could have been considered in one go had the Secretary of State not intervened. The case was approached in a different manner because of the Secretary of State’s involvement”. Case Number: 2361118/2013 7

[19]The Tribunal reaches the same conclusion in respect of application for preparation time by the First and Second Respondents, that the withdrawal from participation by the Secretary of State so close to the hearing caused its postponement. There followed a preliminary hearing on 28 April 2020, which was also caused by the Third Respondent’s action. The full merits hearing was re-listed for 28-30 April 2020 and subsequently heard on 20-24 July 2020.

[20]Therefore we conclude that the Respondent acted unreasonably in the conduct of proceedings in withdrawing from participation so close to the final hearing on 04-06 February 2019, which in turn caused the additional preliminary hearing in April 2020.

[21]This Tribunal finds that the First and Second Respondents had a good period of opportunity after the April 2020 hearing to consider the circumstances and take legal advice, but ultimately they chose to contest the matter. We find they would have needed to review the overall circumstances even if it was simply to understand their own position. The full merits hearing was cancelled further, which allowed the First and Second Respondents more time to review their position had they so wished.

[22]The Tribunal has been presented with a schedule and counter schedule of costs.

[23]Phases 10 and 11 in the First and Second Respondents’ Schedule of Costs relate to the period in question: which is from the Third Respondent’s nonparticipation up to (but not including participation in) the hearing on 28 April 2020.

[24]We conclude that the First and Second Respondents did not start any significant work until around January 2019. Any work before that time was minimal because they considered that the Third Respondent was doing the heavy lifting. The Tribunal does therefore not make a similar award to the Claimant for the case having not been determined in one consideration.

[25]Our decision on unreasonable conduct is to consider the effect of the Third Respondent unreasonably withdrawing its participation in the case at such late notice. It caused the First and Second Respondent to review of the circumstances before the full merits hearing by way of an extra preliminary hearing, the work involved in preparing for that preliminary hearing, to put that information together, understanding the case in order to participate effectively, and to make a decision on whether or not to continue to contest the regulation 2(2) issue.

[26]Very vague figures have been presented to the Tribunal in support of the application, which accordingly necessitates a broad brush approach.

[27]The amount of preparation time claimed in phases 10 and 11 in the First and Second Respondent Schedule of Costs totals 260 hours and the sum of £8,970.

[28]We have refereed ourselves to rule 79, as set out above. On the information available to us and particularly having regard to the complexity of the Case Number: 2361118/2013 8 proceedings, we have considered the amount of preparation time that we estimate would reasonably and proportionally have been undertaken by First and Second Respondents in the circumstances. Overall, using a broad brush approach and not being in a position evidentially to itemise specific areas of work, the Tribunal concludes that the First and Second Respondents are entitled to 80 hours preparation time, which the Third Respondent agrees is calculable at the rate of £43 per hour, which gives a total of £3,440. Therefore that is the amount of preparation time costs that we award. ____________________ Regional Employment Judge Freer Date: 16 July 2024 Case Number: 2361118/2013 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant: Ms Kamalammal Poonnamamnal Kattuvila Puthenveettil Respondents:(1) Mr Santosh Alexander Thukalil

(2) Ms Riya George Thukalil Held at: London South On: 23, 24 and 25 September 2024 Before: Regional Employment Judge Freer Ms C Brown Ms J Forecast Appearances For the Claimant: Ms A Reindorf, KC For the Respondents: Ms A Brown, Counsel

[31]We have difficulty with the claimant’s schedule. When the claimant started, Ryan was enrolled in nursery for some days of the week, then started going every day from age 2½. He started school full time in 2008. None of that is reflected in the Schedule. There are a number of household chores on the Schedule which are unlikely to have been carried out on a daily basis yet the schedule assumes that they are. e.g. window cleaning, which the claimant says she did for an hour a day. It may well be the case that the claimant did the majority of the housework and that would not be surprising given that she was at Case Number: 2361118/2013 12 home most of the day and the respondents went out to work. However, we do not believe she did so to the extent set out in the schedule. We believe it was more ad hoc – she did what needed doing as and when it was needed - and on a voluntary basis rather than the regimented regime her Schedule suggests. “80 c. The claimant’s contention that she worked 18 hours a day, 7 days a week is rejected for the reasons at paragraphs 29-31 of our findings. In determining the claimant’s likely hours of work, we have worked on the basis that her contractual duties were limited to childcare and tasks associated with this i.e. feeding, bathing, dressing, school run etc. we have identified those duties, as best we can, from the claimant’s Schedule of Activities and applied, what we consider to be, a reasonable amount of time for their completion. Having done so, we have concluded that the claimant would have spent an average of 6 hours a day on her duties and was not required to perform these at the weekend. The average hours take into account the birth of the 2 additional children, Johann and Megan, though we don’t believe that this impacted significantly on the claimant’s hours as by the time they were born, Ryan had started school full time and R2 undertook most of their childcare while on maternity leave. As the claimant was not required to work at the weekend, it follows that she was not deprived of her Reg 11 WTR weekly rest break.”24. Factual matters that the instant Tribunal may consider are further addressed by the Employment Appeal Tribunal in its 2018 decision.

25. With regard to hours of work, after referring to paragraphs 12, 29-31 and 80c of the initial tribunal’s decision above, the Employment Appeal Tribunal stated: “37 The conclusions reached by the Tribunal in relation to the Claimant’s housework hours and her other hours of work were reached on the basis that her contractual duties were limited to childcare and associated duties and did not include the housework hours worked, which were described and found to be voluntary, although undoubtedly performed. . .”

[39]It seems to me that the finding in relation to housework is indeed, bound up with the Employment Tribunal’s acceptance that the Claimant fell to be treated as a member of the Respondents’ family household. It is only in that context that the Employment Tribunal could to my mind, permissibly conclude that work she undoubtedly performed over many years, day in, day out, on a consistent basis, was to be regarded as voluntarily undertaken by her as an employee of the First and Second Respondents. In those circumstances, it Case Number: 2361118/2013 13 seems to me that the question of the housework duties she performed should be looked at again, if the legal challenge to Regulation 2(2) succeeds. . .

[40]As a matter of logic, the Claimant’s validity challenge to Regulation 2(2) must, at least arguably, encompass the housework duties as well. If the Claimant was entitled to the NMW because Regulation 2(2) is dis-applied, it is difficult to see how the housework duties can be described as truly voluntarily undertaken, given that this will then be an ordinary employment situation with the Claimant performing duties for the Respondents on a regular and consistent basis, over many years, and it will, without some exceptional facts, then be a matter for the Tribunal to determine on what basis she should or should not be paid.” 26. With regard to pay, the Employment Appeal Tribunal stated: “43. The two matters relied on are as follows. First, the creation by the First Respondent of a bank account in the name of the Claimant and the use of that bank account to credit the weekly contractual sum of £110.00 due to her, but only during certain particular periods, in order to be able to provide those bank statements as evidence to the Home Office about the Claimant’s pay for visa renewal purposes. That occurred in circumstances where, it is now accepted, the Claimant was never aware of the account; she had neither access to nor control over it and the money put into that account was, throughout, dealt with as belonging to the First Respondent. Furthermore, the sums credited were removed by the First Respondent after each visa application was granted at each renewal, and during periods where there was no ongoing visa renewal process, the account lay dormant. The First Respondent gave no disclosure, either of the existence of that account or of the bank statements relating to it, and it only came to light as a consequence of digging by the Claimant’s advisers after exchange of witness statements and other disclosure had occurred.

[44]The second matter concerns a schedule of payments which the First Respondent claimed to have created, contemporaneously, with events. The schedule purported to record cash payments to the Claimant, at ad hoc times and in irregular amounts, from 2005 to 2013. Notwithstanding the ad hoc irregular payments, the Tribunal observed that at the end of each year, the figures, somewhat surprisingly, reconciled within a few pounds of what was said to have been agreed by way of the Claimant’s contractual entitlement. The schedule was described by the Employment Tribunal as suspiciously contrived. It found that it had been created long after the events, and specifically Case Number: 2361118/2013 14 for the Tribunal proceedings to provide a retrospective record of sums the First and Second Respondents may or may not have paid.

[45]Those are, undoubtedly, serious matters. The first is evidence of a deliberate and premeditated course of action designed to deceive the Home Office by falsely representing a bank account as having been set up for the Claimant to receive her weekly contractual salary, when no such thing occurred. Ms Azib conceded that each transaction amounted to a false representation, done to secure a visa renewal. Furthermore, advancing the schedule as a contemporaneous record of ad hoc cash payments was also misleading and the First Respondent behaved dishonestly; again, as is conceded now by Ms Azib on the First and Second Respondents’ behalves”. 27. With regard to the conduct of Mr Thukalil, the Employment Appeal Tribunal stated: “54. Insofar as the Respondents’ evidence is concerned, whilst I do not accept Ms Azib’s submission that the credibility issues raised in relation to them were less serious than those raised in relation to the Claimant, it seems to me that the Tribunal weighed their credibility in the balance. I accept Ms Azib’s submission that the Tribunal, either expressly or implicitly, concluded in this case that the deception the First Respondent engaged in as regards the Home Office was designed to assist the visa renewal process and not to deceive the Home Office into believing that the Claimant was paid sums due when she was not. That emerges not only from paragraph 5 but, implicitly, from the findings at paragraphs 43, 44 and 49.

[55]In relation to the schedule, it is clear that the Tribunal did not rely on it in relation to cash payments. There was no documentary evidence to support cash payments and, therefore, the Tribunal’s view that the schedule carried no weight was the one it observed. However, read fairly and by reference to the whole Judgment, it seems to me that the Tribunal’s conclusion that the Respondents’ difficulty was that they had no documentary evidence to show what, if anything, was paid, hence their attempt to create the schedule retrospectively, was an acceptance by the Employment Tribunal that the First Respondent’s actions were not designed to deceive the Employment Tribunal into believing the Claimant was paid cash when she was not”.28. The Employment appeal Tribunal concluded in respect of payments that: “56. In those circumstances, and notwithstanding the absence of documentary evidence to support their account that cash payments were made on an ad hoc basis and in irregular amounts, it seems to Case Number: 2361118/2013 15 me that the Employment Tribunal was entitled to accept the Respondents’ evidence in preference to that given by the Claimant that she received no cash payments at all (or small amounts of cash payments in the course of cross-examination), and to conclude that the First and Second Respondents’ evidence was not so badly undermined by the two serious matters to which I have referred, given the Tribunal’s conclusions as to their motivation in that regard.” Remitted issues, further findings of fact, applicable law & conclusions

29. The Tribunal considers that it is necessary first to determine the number of hours the Claimant worked doing housework generally.

30. It was accepted by the Respondents that the Claimant did some housework, which was also a finding of fact by the initial Tribunal (see paragraph 30 of the decision).

31. We note from the initial tribunal’s decision that it observed: “It may well be the case that the claimant did the majority of the housework and that would not be surprising given that she was home most of the day and the respondents went out to work. However we do not believe she did so to the extent set out in the schedule. We believe it was more ad hoc – she did what was needed doing as and when it was needed”.

32. The Employment Appeal Tribunal observed that: “the finding in relation to housework is bound up with the Employment Tribunal’s acceptance that the Claimant fell to be treated as a member of the Respondents’ family household. It is only in that context that the Employment Tribunal could to my mind, permissibly conclude that work she undoubtedly performed over many years, day in, day out, on a consistent basis was to be regarded as voluntarily undertaken by her as an employee of the First and Second Respondents”.

33. We are not sure whether the initial tribunal conveyed that as a concluding fact. The Respondents argue that it did not.

34. However, in any event, having considered the totality of the evidence we conclude as fact that the Claimant did undertake a good deal of the housework, but not to the extent set out in the Schedule of Activities annexed to the Claimant’s first witness statement, relied upon again as part of this hearing.

35. Mr Thukalil gave evidence that the contract he entered into with the Claimant in 2005 (page 126 of the bundle) was mainly for visa purposes and not to regulate the working arrangement with the Claimant. Case Number: 2361118/2013 16

36. Mr Thukalil’s evidence was also that the situation had amounted to the Claimant “being paid to do not much” and that had he known he would have to pay the Claimant the national minimum wage he would not have taken her on. However, this does not sit comfortably with entering into an employment relationship with the Claimant, who for around eight years had been given free board and lodgings, using one of three bedrooms in his house, and to whom he had also paid around £110 per week. We find that arrangement was more compatible with the Claimant providing consistent and helpful assistance.

37. Mrs Thukalil’s evidence was that when the Claimant first undertook tasks for the Respondents she helped with the household activities and with a young son it was a relief to get help.

38. Her evidence was also that to have the Claimant at home created more flexibility for her in her occupational work as an IT professional. Save for period of maternity leave of Mrs Thukalil starting around early 2010, both Respondents had worked for the majority of the time that the Claimant was within the household.

39. We find as fact that the Claimant did the household work that she was asked to do. We also find from her evidence that: she did not clean the windows every day; she would not always clean Mr and Mrs Thukalil’s bedroom; she cleaned the kitchen “almost” but not every day; she did not always have to set the table; and Mrs Thukalil sometimes did the vacuuming. The initial tribunal have already found as fact that tasks were not performed at weekends. This demonstrates a divergence from the way the Schedule of Activities had originally been represented.

40. The Tribunal concludes that the picture painted by the evidence is that there was some give-and-take in the arrangements over time and that the set-up of the working relationship between the Respondents and the Claimant supports the Claimant’s evidence that she undertook much of the housework. We also conclude on balance that it was inevitable that the Claimant would do so in the circumstances.

41. We find that there was a requirement for the Claimant to do household work. However, we also agree with the initial tribunal’s view that it was not to the extent as set out in the Claimant’s Schedule of Activities.

42. The footnote to the Schedule states that the information contained in it is referable to the period pre 2010 and the birth of the Respondents’ other two children, after which there were some changes but the basic duties were the same. Case Number: 2361118/2013 17

43. The Claimant’s third witness statement states at paragraph 4: “I was not trying to say it was an exact record of each and every day I worked. I was just trying to explain what a typical day would be like. But of course this would change depending on the instructions I was given and the number of people to be looked after.”

44. We were in much the same position as the initial tribunal in that a good deal of the evidence between the parties was in conflict and we find on balance that the true factual position was unlikely to be wholly that given by either party, both being prone to degrees of exaggeration in support of their own positions.

45. However, we recognise that the evidence on each side is hampered by the passage of time, these events occurring between 2005 and 2013, and also the fact that no party expected litigation, Regulation 2(2) was then seemingly applicable and these matters were not set out in any contractual document nor otherwise contemporaneously recorded.

46. We do not consider that the Schedule is representative of a typical day, but we accept the argument made on behalf of the Claimant that it is illustrative of the type of duties she had undertaken. We find as fact that the matters raised in the Schedule were not all done on a regular basis or if they were the time taken would not be as much as that claimed by the Claimant. Where there are parameters of time taken, the Tribunal concludes that the lower time is more likely to have occurred.

47. We take the same approach as the initial tribunal and arrive at an average daily amount of hours considered over a period of time during which there were fluctuating child care responsibilities and also housework based on different numbers in the house. There seems no other method of making a sensible determination over the period under review.

48. We therefore conclude on balance that an average number of hours total per day of housework for a five day week is an appropriate measure. In doing so we conclude that average to be 4 hours a day in addition to the 6 hours child care finding by the initial tribunal, giving an additional 20 hours per week undertaking housework and a 50 hour total average working week.

49. Having found the average hours of housework, we conclude that this work was provided on a contractual basis and not voluntarily.

50. There was no written contract that expressly covered the circumstances of housework. The contract was based on an adaptation of a template produced by the Home Office and refers only to “care and support” for the Respondents’ first son as a nanny which “involves cooking his meals, Case Number: 2361118/2013 18 stimulating him in play and work and doing his washing and ironing”, or as the initial tribunal and the Employment Appeal Tribunal put it “child care and associated duties”. It was not created with an intention to regulate the whole relationship.

51. The Employment Appeal Tribunal considered that performing the household duties on a regular and consistent basis over many years in an ordinary employment situation would be difficult to describe as truly voluntary. We agree. We accept that some elements were voluntary from time to time and have factored that into the average worked per week. However, working 20 hours a week, over a protracted period undertaking repeating household duties, as we have found, in our conclusion created a contractual relationship. The Respondents, at the very least, gave consideration of food and board in exchange for the Claimant providing that additional work. There was an early expectation by the Respondents that this work would be undertaken by the Claimant under the same contractual terms of employment involving the expressed child care and associated duties and the Claimant accepted this by performance.

52. Once the Tribunal has made a finding on the hours worked by the Claimant and that this was a contractual arrangement, there remain two final steps to consider for national minimum wage purposes. First, to determine the type of work that was being undertaken with a focus on the way in which the worker's pay is calculated under their contract, rather than their duties (see Royal Mencap Society -v- Tomlinson-Blake

[2018] EWCA Civ 1641

). Second, the hours that count for national minimum wage purposes must be identified, using the rules set down for the relevant work category.

53. With regard to the type of work, the Tribunal concludes that it is unmeasured work.

54. The Claimant argued that the matter of remedy should be considered under the 1999 regulations whereas the Respondents argued that the 2015 regulations applied. The claim pursued by the Claimant was brought under the NMWR 1999. Although those regulations were replaced by the NMWR 2015 and the 1999 regulations were revoked from 06 April 2015, the Tribunal considers that the terms of the remedy for a successful claim made under the 1999 regulations should be considered under those regulations. 55. With regard to type of work, the Tribunal concludes that it is not ‘salaried work’ under regulation 4. The Claimant did not work under a contract where she was entitled to be paid for an ascertainable number of basic hours in a year.

[56]The Tribunal concludes that it is not ‘time work’ under regulation 3 as the Claimant was not paid under her contract by reference to the time for which Case Number: 2361118/2013 19 she works, or output that she achieved in any period that was not salaried hours work. Neither is it ‘output work’, the Claimant was not paid by reference to a measure of her output.

[57]Therefore under regulation 6 the Claimant undertook ‘unmeasured work’, being “any other work that is not time work, salaried hours work or output work including, in particular, work in respect of which there are no specified hours and the worker is required to work when needed or when work is available”.

[58]Regulation 27 provides the hours that count for national minimum wage purposes in the Claimant’s circumstances: “The unmeasured work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period in carrying out the contractual duties required of him under his contract to do such work”.

[59]In the Claimant’s circumstances, the pay reference period determined under regulation 10 is a week. Regulation 10 provides that: “The pay reference period is a month or, in the case of a worker who is paid wages by reference to a period shorter than a month, that period”. The Claimant was paid by reference to a weekly period, although received those sums due on a monthly basis.

[60]The method of determining whether or not the national minimum wage has been paid is set out in regulation 14: “(1) The hourly rate paid to a worker in a pay reference period shall be determined by dividing the total calculated in accordance with paragraph (2) by the number of hours specified in paragraph (3). (2) the total referred to in paragraph (1) shall be calculated by subtracting from the total of remuneration in the pay reference period determined under regulation 30, the total of reductions determined under regulations 31 to 37. (3) The hours referred to in paragraph (1) are the total number of hours of time work, salaried hours work, output work and unmeasured work worked by the worker in the pay reference period that have been ascertained in accordance with regulations 20 to 29”.

[61]Under the decision of the initial tribunal, undisturbed by the EAT, the Claimant received all of her contractual pay with regard to her child care and associated duties and those duties averaged 6 hours a day for five days a week (see in particular paragraphs 12, 49 and 80(c) of the initial tribunal decision and paragraphs 37, 39 and 40 of the Employment Appeal Tribunal decision). The Tribunal concludes that it follows the Claimant did not receive any pay for any contractual hours undertaking household work that falls outside of that description.

[62]The Tribunal concludes that it matters little whether this issue is approached under the 1999 or the 2015 regulations, particularly as the intention of the 2015 Regulations was to consolidate and simplify the 1999 regulations, Case Number: 2361118/2013 20 rather than to change their effect and amend the law. Under either of the regulations the Tribunal concludes that the national minimum wage applies to the household hours worked by the Claimant and no deductions apply to the minimum wages sum, except for the weekly accommodation allowance offset.

[63]It was argued on behalf of the Respondents that there should be sums offset as part of any national minimum wage liability calculation to reflect food costs as part of the accommodation allowance. The Tribunal agrees with the Claimant’s submissions that accommodation allowance is clearly a prescribed statutory sum without any additional element available to offset food costs. Indeed, it was not persuasively expanded further on behalf of the Respondents how any offsets claimed could be made by reference to the regulations and any applicable case law.

[64]Other ongoing costs were itemised on behalf of the Respondents relating to clothes, telephone calls, international travel, visa and miscellaneous items (mostly medicines), but it was accepted that these amounts are not recoverable for the purposes of calculating the national minimum wage. They are set out as tangible benefits which the Respondents say reveal the reality about the way the Claimant had been treated by them.

[65]Both sets of regulations confirm that benefits in kind cannot be taken into account for national minimum wage purposes, save for accommodation offset (NMWR 1999: 30 to 36; NMWR 2015: 10 and 14).

[66]Section 17 of the Minimum Wage Act 1998 addresses enforcement of noncompliance with the National Minium Wage: “(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 . . . 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.”

[67]This provision is intended to ensure higher compensation where the national minimum wage has not been paid for a substantial period. Case Number: 2361118/2013 21

[68]The decisions of the respective employment tribunals have now found that the Claimant worked 50 hours a week which, in relation to changes in the amount of the national minimum wage and the weeks worked, produces the table in Appendix 1 below. This differs, in particular with regard to the order of deductions, from the table contained in the Schedule of Loss provided by the Claimant. The Tribunal considers that accommodation offset is added to the money payments made to the Claimant in discharge of the Respondents’ minimum wage liability before the calculation of relevant remuneration set out in section 17 when applying the current national minimum wage rate. Section 17 refers to “remuneration” and Regulation 30 makes provision for the assessment of “the total of remuneration in a pay reference period” where regulation 30(d) adds the accommodation offset.

[69]The Tribunal concludes that the Claimant’s claim of unauthorised deductions from wages, through the operation of the national minimum wage, is successful and the Respondents shall pay to the Claimant the sum of £100,491. The Claimant’s claim was presented on 22 July 2013 and therefore the two years’ back-pay cap introduced by the Deduction from Wages (Limitation) Regulations 2014 for claims presented on or after 01 July 2015 does not apply. Regional Employment Judge Freer 16 December 2024 Case No: 2361118/2013 Appendix to Judgment Appendix 1 Period of Employment Hours/ week Weeks Total hours NMW NMW Due Pay received AO p/week Total AO Total received towards NMW Unpaid NMW Unpaid NMW/ NMW rate X by current rate (£11.44) 01/08/05 – 30/09/05 50 8 400 £4.85

£1,940.00

£880

£26.25

£210.00

£1,090.00

£850

£175

£2,005 03/10/05 - 29/09/06 50 51 2550 £5.05

£12,877.50

£5,610

£27.30

£1,392.30

£7,002.30

£5,875

£1,163

£13,309 01/10/06 -30/09/27 50 52 2600 £5.35

£13,910.00

£5,720

£29.05

£1,510.60

£7,230.60

£6,679

£1,248

£14,283 01/10/06 - 22/02/08 50 20 1000 £5.52

£5,520.00

£2,200

£30.10

£602.00

£2,802.00

£2,718

£492

£5,633 13/10/06- 30/09/09 50 50 2500 £5.73

£14,325.00

£6,000

£31.22

£1,561.00

£7,561.00

£6,764

£1,180

£13,504 01/10/06 - 30/09/10 50 52 2600 £5.80

£15,080.00

£6,240

£31.57

£1,641.64

£7,881.64

£7,198

£1,241

£14,198 01/10/06 - 30/09/11 50 52 2600 £5.93

£15,418.00

£6,240

£32.27

£1,678.04

£7,918.04

£7,500

£1,265

£14,469 01/10/06 - 30/09/12 50 52 2600 £6.08

£15,808.00

£6,240

£33.11

£1,721.72

£7,961.72

£7,846

£1,291

£14,763 01/10/06 - 23/04/13 50 29 1450 £6.19

£8,975.50

£3,492

£33.74

£978.46

£4,470.46

£4,505

£728

£8,326 18300 £103,854.00

£42,622

£11,295.76

£53,917.76

£49,936

£8,784

£100,491 Total award £100,491 Case Number: 2361118/2013 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant: Ms K P K Puthenveettil Respondents:(1) Mr S Alexander Thukalil

(2) Ms R George Thukalil RECONSIDERATION JUDGMENT

Conclusions

[1]Following a reserved judgment on remedy sent to the parties on 06 January 2025, the Respondents made an application for a reconsideration dated 19 January 2025.

[2]The application contains a number of grounds:(i) errors and discrepancies in the calculation;

(ii) overestimation of hours worked;

(iii) forensic approach for determining unmeasured work hours; and

(iv) unjust calculation of national minimum wage liability for non-compliance.

[3]In its decision on remedy, the Tribunal produced a table of calculations in respect of which the Tribunal used the start date of employment of 01 August 2003. It is accepted that the start date used was incorrect and that work with the Respondents commenced on 14 November 2005. On review, the date of 01 August 2005 was the Claimant’s start date of employment with the First Respondent’s father. The table is adjusted and the judgment amended accordingly. Case Number: 2361118/2013 2

[4]It is also accepted that it was a finding of fact by the initial Employment Tribunal, undisturbed on appeal, that: “The claimant travelled to India on her own on 3 separate occasions during her employment – February 2008, July 2010 and 2011” and “The claimant travelled to India with the respondents in 2007”.

[5]The dates used in the Tribunal’s remedy calculation do not properly reflect that position.

[6]There is a gap between 22/02/08 and 13/10/08 in the dates used, which is recognition that the Claimant spent time in India on the illness and passing of her mother (similar periods are used by both the Claimant and the Respondents in their schedules).

[7]However there are no adjustments in the dates for trips in 2007, 2010 and 2011 and also potentially in 2009. Therefore the Respondents’ application was not refused on this issue.

Background

[8]The Tribunal sought the views of the parties whether this sole issue could be determined without a hearing. Equally the parties were encouraged to agree the periods of time that the Claimant travelled to India on her own in 2010 and 2011 and spent as holiday in 2009, so this could be reflected in the remedy schedule.

[9]The Tribunal’s provisional view was provided on the application that: a period of 4 weeks should be deducted from the remedy schedule for the Claimant’s trip to India in 2007, which the Respondents’ counter schedule places at being from 01/10/2007 to 28/10/2007; plus a period of 2 weeks should be deducted from the remedy schedule for the Claimant’s purported trip to India in 2009, which the Respondents’ counter schedule places at being from 21/08/2009 to 06/09/2009; plus a period of 4 weeks should be deducted from the remedy schedule for the Claimant’s trip to Case Number: 2361118/2013 3 India in 2010, which the Respondents’ counter schedule places at being from 10/05/2010 to 13/06/2010; and a deduction from the remedy schedule of 6 weeks for the Claimant’s trip to India in 2011, which the Respondents’ counter schedule places at being from 18/07/2011 to 28/08/2011.

[10]A provisionally adjusted remedy schedule was provided for ease of reference purposes only.

[11]The Tribunal concluded that the remaining arguments made by the Respondents sought to revisit matters already considered by the Employment Tribunal.

[12]The Tribunal undertook a detailed consideration of the totality of the evidence as supplied by the parties, weighing it on balance before reaching conclusions. Given the length of time since the principal matters in this case occurred, some of the parties’ own evidence was uncertain and unreliable. Therefore it necessarily follows that the Tribunal’s conclusions are its conscientious best to reach decisions on the material provided after fair and reasoned analysis, drawing inferences where necessary.

[13]For example the Tribunal considered the various circumstances in the Respondents’ household, examined witness statements for corroboration or contradiction, considered routine schedules and compared the hours claimed having regard to credibility and proportionality.

[14]The Tribunal can only come to a conclusion based on the evidence before it and if the parties have not provided a forensic assessment of hours worked supported by credible and acceptable evidence, it is not arguable Case Number: 2361118/2013 4 that this exercise should be undertaken as part of a reconsideration analysis.

[15]The Tribunal did not err in applying the National Minimum Wage Regulations 1999 instead of the National Minimum Wage Regulations 2015. This was considered at the tribunal hearing and representations were made by both Counsel. The Tribunal was required to consider remedy by applying the National Minimum Wage Regulations 1999 as they were the regulations extant at the material times. Even though the 2015 regulations were intended to simplify and consolidate the 1999 regulations and relevant case law, legislation does not have retrospective force, unless on the rare occasion that is stipulated in the statutory provisions, which was not the case with regard to the 2015 regulations. It was not coherently argued on behalf of the Respondents why the 2015 regulations should apply in these circumstances, but in any event, even in the application for a reconsideration, there is no explanation as to how it would have made any material difference.

[16]The Tribunal has acknowledged the Respondents’ position on the basis that the Secretary of State abandoned the litigation prior to the regulation 2(2) issue being determined. However, under the law, regulation 2(2) has correctly been disapplied and although the Respondents say it: “feels unfair to face retrospective liability for practices that were lawful at the time, especially when they have acted in good faith”, that is the required law to apply to the circumstances of this case.

[17]The offset arguments raised by the Respondents do not apply for the reasons given in the Tribunal’s decision.

[18]Accordingly, in a letter to the parties dated 16 April 2025, the Tribunal notified the parties of the decision that the change relating to the Case Number: 2361118/2013 5 Claimant’s start date is to be made and the times the Claimant travelled to India is to be the single subject of reconsideration. The Tribunal concluded that there was no reasonable prospect of the remaining decision being varied or revoked and the application was refused in that respect.

[19]The letter from the Tribunal to the parties of 16 April 2025 also provided a preliminary view of the potential errors that had been identified in the remedy calculation together with a suggested revised Schedule of Remedy and requested a response by the parties on or before 09 May 2025.

[20]The Respondents replied on 09 May 2025 agreeing to the adjustments made by the Tribunal in the provisional adjusted remedy schedule.

[21]The Respondents also drew that Tribunal’s attention to factual and procedural issues that they considered remained unresolved. These were: “Calculation Errors: In the period between 01/10/2007 and 22/02/2008, the Tribunal’s schedule in the judgement showed 20 weeks of employment. The provisional amended schedule too shows 20 weeks of employment. After deducting the Claimant’s 4-week holiday to India, the correct figure should be 16 weeks. Omission of Prior Awards: The Tribunal has not taken into account the amounts already awarded to the Claimant in the original Tribunal judgment dated 11 February 2017, which granted:  £297.23 for holiday pay in respect of her final leave year; and Case Number: 2361118/2013 6  £240 for failure to provide a statement of employment particulars.”

[22]The Respondents also raised a number of other matters being: “Maintenance of All Other Arguments in Reconsideration Application”; “Reiteration Regarding Forensic Assessment of Hours”; “Inconsistency with Previous Tribunal Findings”; “Duration of Litigation and Responsibility for Delay”; and “Concerns Regarding Bias and Procedural Fairness”.

[23]All of these matters had been considered in the Tribunal’s initial reconsideration decision, which had rejected the application in respect of all matters, expect for the single subject of the time the Claimant travelled to India, as they had no reasonable prospect of being varied or revoked for the reasons given in the letter of 16 April 2025.

[24]The Respondents confirmed that they were content for the Employment Tribunal to determine the adjusted remedy schedule without a further hearing, on the basis of the documents and submissions already provided.

[25]The Claimant replied on 18 June 2025 and stated that save for the application of the four week deduction for the 4 week period referred to at paragraph 9 of the Tribunal’s letter of 16 April she has no amendments to make. However, there are two 4 week periods mentioned in that paragraph, one relating to 2007 and the other relating to 2010. The Claimant’s letter does not clarify the 4 week period with which she takes issue and the ground relied upon.

[26]With regard to the sums awarded in 2017, the Claimant argues that the sum of £297.23 was included within the salary paid for the period from 1 October 2012 to 23 April 2013. It is correct that the sum of £240 was awarded due to the failure to provide a written statement of particulars of employment, but this is a separate claim from that arising from the failure Case Number: 2361118/2013 7 to pay the national minimum wage and should not now be offset against any wage calculation. The Tribunal agrees with the Claimant’s position. No adjustment to the remedy awarded will be made in respect of these two matters.

[27]The Claimant also signified that she was content for the sole issue of the national minimum wage due to be determined without a hearing.

[28]Having considered all the material relating to the single issue of the periods the Claimant travelled to India the Tribunal reaches a conclusion similar to the position previously indicated to the parties. Upon a reconsideration under Rule 70 the Employment Tribunal Procedure Rules 2024, it is the judgment of the Tribunal that:(1) A period of 4 weeks shall be deducted from the Schedule of Remedy for the Claimant’s trip to India in 2007, which the Respondents’ counter schedule places at being from 01/10/2007 to 28/10/2007 and the Schedule of Remedy should also be amended to reflect the number of weeks to which pay is due from 20 to 16;

(2) Plus, a period of 2 weeks shall be deducted from the Schedule of Remedy for the Claimant’s trip to India in 2009, which the Respondents’ counter schedule places at being from 21/08/2009 to 06/09/2009;

(3) Plus, a period of 4 weeks shall be deducted from the Schedule of Remedy for the Claimant’s trip to India in 2010, which the Respondents’ counter schedule places at being from 10/05/2010 to 13/06/2010; Case Number: 2361118/2013 8

(4) Plus, a period of 6 weeks shall be deducted from the remedy schedule for the Claimant’s trip to India in 2011, which the Respondents’ counter schedule places at being from 18/07/2011 to 28/08/2011.

[29]The Schedule of Remedy has been amended accordingly and is attached to this Judgment. Regional Employment Judge Freer 12 November 2025 Case Number: 2361118/2013 9 Schedule of Remedy Period of Employment Hours/ week Weeks Total hours NMW NMW Due P a y received AO p/week Total AO Total received towards NMW Unpaid NMW Unpaid NMW/ NMW rate X by current rate (£11.44) 14/11/05 - 30/09/06 50 46 2300 £5.05

£11,615.00

£5,610

£27.30

£1,255.80

£6,865.80

£4,749

£940

£10,759 01/10/06 -30/09/07 50 52 2600 £5.35

£13,910.00

£5,720

£29.05

£1,510.60

£7,230.60

£6,679

£1,248

£14,283 01/10/07 - 22/02/08 50 16 800 £5.52

£4,416.00

£2,200

£30.10

£481.60

£2,681.60

£1,734

£314

£3,594 13/10/08- 30/09/09 50 48 2400 £5.73

£13,752.00

£6,000

£31.22

£1,498.56

£7,498.56

£6,253

£1,091

£12,485 01/10/09 - 30/09/10 50 48 2400 £5.80

£13,920.00

£6,240

£31.57

£1,515.36

£7,755.36

£6,165

£1,063

£12,159 01/10/10 - 30/09/11 50 46 2300 £5.93

£13,639.00

£6,240

£32.27

£1,484.42

£7,724.42

£5,915

£997

£11,410 01/10/11 - 30/09/12 50 52 2600 £6.08

£15,808.00

£6,240

£33.11

£1,721.72

£7,961.72

£7,846

£1,291

£14,763 01/10/12 - 23/04/13 50 29 1450 £6.19

£8,975.50

£3,492

£33.74

£978.46

£4,470.46

£4,505

£728

£8,326 337 16850 £96,035.50

£41,742

£10,446.52

£52,188.52

£43,847

£7,673

£87,780 Total award £87,780