Looking at the instant case, the Court ruled that Watch Tower Bible and Tract Society of Pennsylvania had a Branch Office in Britain, which was established under the Companies Act 1984 and was registered as a charity. The ecclesiastical Britain Branch Office appointed and removed elders in Britain. At all relevant times, the Barry Congregation was an unincorporated association, of which the Trustees of the Barry Congregation were elders. The Supreme Court determined that the ecclesiastical Britain Branch Office was the body that was most obviously the “quasi-employer”. However, as it was a branch of, and therefore acting on behalf of, the Watch Tower Bible and Tract Society of Pennsylvania, the Court concluded that this latter body was the correct defendant for the purposes of vicarious liability. It was referred to by the Supreme Court as the “Jehovah’s Witness organisation”.
Referring to the two-stage test for vicarious liability, the Supreme Court agreed with the Court of Appeal and the High Court that there was a relationship akin to employment between the Jehovah’s Witness organisation and Mr S in his role as an elder. Regarding the second stage of the test, the Court had to ask itself “was the rape committed by Mr S so closely connected to the acts the Jehovah’s Witness organisation had authorised Mr S to do, that it could be fairly and correctly regarded as committed whilst Mr S was acting in his quasi-employment position as a church elder”? This part of the test was not satisfied for several reasons, including:
- The rape happened in Mr S’s home, not whilst he was taking part in any employment activities.
- Mr S was not exercising control over Mrs B because of his position as an elder. Mrs B went into the back room (where the rape occurred) because of her close friendship with Mr S and she was seeking to provide emotional support to him.
- Although the rape was a horrific act, it could not be classed as the same as ongoing and planned child grooming.
Finally, the Supreme Court made it clear that simply because the Jehovah’s Witness organisation had more money available than Mr B to pay a compensation award, this did not justify expanding the doctrine of vicarious liability beyond its present boundaries.
Family worker exemption upheld.
In Thukalil and another v Puthenveettil and another [2023] EAT 47, the EAT upheld a tribunal decision disapplying the “family worker exemption” in regulation 2(2) of the National Minimum Wage Regulations 1999 (NMW).
The general right to receive the NMW is set out in the National Minimum Wage Act (NMWA) 1998, which 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” (section 1(1), NMWA 1998).
Workers who reside in their employer’s family home, are treated as part of the family (in that they share leisure activities and household tasks) and are not charged for food and board do not qualify for the NMW (referred to as the “exemption”). However, because of concerns around abuse of the exemption to be paid the NMW in relation to migrant domestic workers, there are confirmed plans to remove the exemption but at the time of writing Parliament had not yet addressed the issue.
The facts of Thukalil and another v Puthenveettil and another were as follows: Ms Puthenveettil, the Claimant, travelled to the UK from India in July 2005. Upon arrival, she was employed by a husband and wife as a live-in domestic worker in their London home. She was paid between £110-£120 per week, a far lower rate than what she would be entitled to if she were being paid the NMW. She resigned in 2013 and brought, among other claims, an unauthorised deduction from wages claims in the Employment Tribunal. She sought to be paid the level owed to workers under the NMWA 1998.
Section 19 of the Equality Act 2010 provides for indirect discrimination, revolving around the principles of ‘provision, criterion, or practice’ (‘PCP’) that appears neutral but in practice discriminates against a group of people. Ms Puthenveettil argued that the exemption was discriminatory as it prevented a group of workers (i.e., foreign live-in domestic workers) who were mostly women, from receiving the NMW. Furthermore, she claimed the exemption contravened Article 157 of the Treaty on the Functioning of the European Union (‘TFEU’), which states that “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”. Alternatively, she argued that even if Article 157 TFEU was irrelevant, the exemption violated the general principle of non-discrimination that was enshrined in EU law.
