How a ruling in South Africa shines a light on the UK’s weak protections for domestic workers

“Domestic workers are the unsung heroines in this country and globally. They are a powerful group of women whose profession enables all economically active members of society to prosper and pursue their careers.”

This is the opening sentence of the seminal judgment on the rights of domestic workers of the Constitutional Court of South Africa of 19 November 2020, Mahlangu & another v Ministry of Labour and others. The judgment addresses the statutory exclusion of the families of domestic workers from a benefit paid to other workers or their families following injury or death in a workplace. It holds the exclusion to be in violation of the rights to social security, equality, and human dignity.

The exclusion of domestic workers from protective labour and social legislation is common in many legal orders, including the UK as we explain later on in this piece. Domestic work has been typically undervalued and not recognised as real work. The exclusion of this invaluable but undervalued category of workers from protective legislation places them in a position of further disadvantage. Mahlangu takes a decisive step towards addressing what has been described as the “legislative precariousness of domestic workers”.

Who are domestic workers?

According to the International Labour Organisation (ILO), domestic work is a crucial occupation for millions of women worldwide, but is also systematically undervalued. It often fails to be recognised as real work, leaving workers in the sector “vulnerable to unequal, unfair and often abusive treatment”. Around the world, domestic workers, who perform labour such as cooking, cleaning and care for children and the elderly in private households, are overwhelmingly women and disproportionately from ethnic minorities and/or are international migrants.

The vulnerability of domestic workers is exacerbated in many jurisdictions by their “explicit exclusion or lower degree of protection” from protective labour legislation, often including minimum wage and working time limits, and by the inadequate enforcement of existing rights. In 2011, the ILO adopted Convention 189 (C-189) on the rights of domestic workers, which includes a range of social and labour rights protections such as limits on working hours and minimum wage entitlements, alongside other human rights such as the rights to privacy and access to justice. C-189 classes domestic work as both “work like any other” – in the sense that it is real work and – and “work like no other” in recognition of the specific vulnerabilities of domestic workers. South Africa ratified C-189 in 2013, one of the earliest states to have done so of the 30 to date. In some respects South Africa has progressive laws for domestic workers, but compliance levels remain an ongoing problem – as did the exclusion from the specific social security entitlement dealt with in Mahlangu.

Background facts and key findings in Mahlangu

Mahlangu arose from extremely tragic circumstances. Having been employed as a domestic worker for the same family for 22 years, on 31 March 2012 Ms Mahlangu drowned in her employer’s pool while carrying out her work. She reportedly could not swim and was partially blind, and the employer – present in the home at the time – said he could not hear her struggling (§7).

After Ms Mahlangu’s death, her daughter, who at the time depended on her financially, sought compensation from the Department of Labour. However, she was informed that this was unavailable because of the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act (COIDA) (§8). COIDA collects levies and pays these along with money from other sources into a Compensation Fund, from which employees and/or their families are entitled to benefits in the event of an accident at work that causes the employee to become disabled or die (§33-35). The definition of an “employee” in COIDA specifically excluded domestic workers, preventing them or their dependents from claiming compensation (§35).

The Court’s ruling

The Constitution of South Africa was “transformative“. It sought to constitute “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”. One of the ways in which it aimed to achieve its transformative goal is through the recognition of economic and social rights, alongside civil and political rights (see also Liebenberg here).

Referring to the Constitution’s transformative nature, the judgment in Mahlangu holds the exclusion of domestic workers from COIDA to be constitutionally invalid. This judgment has immediate effect retrospective from 27 April 1994, the date of the first post-apartheid election in South Africa. By the time of the Constitutional Court hearing, the respondent state bodies had conceded that the exclusion violated constitutional rights and should be struck out. However, because of the important points of principle that the case raised, the Constitutional Court decided to hear it and give a reasoned judgment, explaining why exclusion from COIDA violated the human rights of domestic workers. The powerful leading judgment was given by Victor AJ, with whom six other justices of the Supreme Court concurred; a dissenting judgment of Jafta J and concurring judgment of Mhlantla J both reach the same conclusion that the provision is unconstitutional through different reasoning.

A) Access to social security

The leading judgment frames its findings on the basis of South Africa’s international human rights law obligations, beginning with the recognition of a universal right to social security in Article 22 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Economic, Social and Cultural Rights. It also addresses regional instruments such as the Maputo Protocol, which requires social insurance for women in the informal sector (§36-38). It holds the exclusion of domestic workers from COIDA benefits to be “inexplicable” given these obligations (§40).

The judgment holds that COIDA is a subset of the right of everyone to access social security, including social assistance when needed to support themselves and their dependents, in section 27(1)(c) of the South African Constitution (§58), one of the social rights provisions that is aimed at transforming society post-apartheid. It explains that when a breadwinner has died or cannot work because of injury, her dependants may be left destitute. Social assistance to these dependants is an aspect of social security (§52).

The right to social security as a human right and its features of universality of protection, social inclusion and non-discrimination have been recognised by the ILO itself in Recommendation 202(2012), while the ILO Constitution of 1919 was the first international document to declare that lasting peace and social justice are inextricably linked with social security: “the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision of old age and injury”. In 2016, the ILO issued a report on ‘Social Protection for Domestic Workers’, that highlighted that globally, 90% of domestic workers are excluded from social security systems.

In Mahlangu, the Court draws on previous influential findings in social rights case law, Grootboom and Khosa, and on the “transformative purpose of the Constitution which seeks to heal the injustices of the past and address the contemporary effects of apartheid and colonialism” (§55). Against this background, it highlights that the reasonableness of any policy must be determined based on its impact on dignity, equality, and the most vulnerable and in greatest need, taking account of “intersecting oppression based on race, sex, gender, class and other grounds” (§61,65). The judgment engages substantially with the relevance of historical and structural disadvantage to social security entitlement. It points to a “remedial purpose” of social security provisions in undoing the legacies of colonialism and apartheid, finding that the exclusion of domestic workers from COIDA, far from serving a legitimate objective, entrenched patterns of disadvantage (§63-64).

B) Equality/intersectional discrimination

The leading judgment holds that the exclusion of domestic workers from COIDA breaches both Article 9(1) of the Constitution, which provides for equality before the law, and Article 9(3) prohibiting unfair discrimination by the state. It deals briefly with the former: since the state had conceded the challenge they had offered no basis for the differentiation between domestic workers and others, meaning it was “arbitrary and inconsistent” with Article 9(1) (§72).

Its findings on Article 9(3) are more detailed and striking for their discussion on the “intersectional discrimination” faced by domestic workers. “Intersectionality” is a term originally used by Kimberle Crenshaw to highlight the distinctive nature of black women’s experience of discrimination, compared to sexism experienced by white women or racism experienced by black men. The concept therefore highlights “the compounded nature” of the disadvantages faced by black women, or others who share more than one marginalised characteristic. This is highly relevant to the situation of domestic workers in South Africa, who are predominantly black women and therefore face an “aggravated” level of discrimination (§73), as well as elsewhere in the world.

After presenting Crenshaw’s underlying theory, the Court notes that the power of the intersectional approach “lies in its capacity to shed light on the experiences and vulnerabilities of certain groups that have been erased or rendered invisible”, without which the burden domestic workers have experienced will fail to be adequately recognised (§85). It observes that the concept provides for an understanding of “the structural and dynamic consequences of the interaction between these multiple forms of discrimination”, drawing on Shreya Atrey’s recent work on intersectional discrimination:

[D]isadvantage is defined not by isolated or stray incidents but by systemic or structural nature. It represents a pattern of historic motifs of disadvantage which have been entrenched over time (p41 cited at §91).

Accordingly, an intersectional approach requires courts to examine contextual factors including “the social and legal history” of a group’s treatment and the oppression faced by black women as a result of the racial hierarchies of apartheid, which placed them “at the bottom of the social hierarchy” and pushed them into the lowest paid and most insecure jobs (§95-100). By contrast to the majority’s approach, Jafta J held that the provision can be struck down on rationality grounds alone (§160), and made no finding of a breach of equality law. One reason given in support of this finding was the fact that not only domestic workers were excluded from COIDA (§162). However, as stated in the leading judgment, the other classes of workers Jafta J mentioned – such as police officers – benefit from alternative schemes, whereas domestic workers do not (§94).

The approach taken by the leading judgment is to be welcomed for its recognition of the structural and historical context of domestic workers’ vulnerability, which continues to have a negative impact on workers in this sector today. “Domestic workers remain shackled by poverty, because the salaries they earn are low and not nearly enough to take care of all their daily needs and those of their families” (§104). Thus, despite the specifically tragic nature of Ms Mahlangu’s case, the judgment does not seek to treat her poor treatment as a domestic worker as exceptional. Instead, it contextualises Ms Mahlangu’s situation as one manifestation of a broader, ongoing structural disadvantage that dates back to apartheid and has not been adequately addressed to date.

C) Right to human dignity

The analysis of human dignity under the Constitution places attention on the nature of domestic work that is widely undervalued. Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected”, and the leading judgment highlights that the treatment of domestic workers does not respect their dignity. “One can only imagine the pain of these women who work graciously, hard and with pride only for their work and by consequence them, to go unrecognised,” says Victor AJ (§108). Domestic work has traditionally been undervalued, both because of gendered devaluation – labour in the household is constructed as inherent to women and not acknowledged as ‘real work’ – and because of the “cultural codification” of the work, which is frequently performed by ethnic minorities who face systemic discrimination and disadvantage. Domestic workers are regularly exploited but their sector is typically excluded from protective labour legislation and their labour objectified. Their discriminatory and humiliating treatment constitutes a violation of their human dignity, according to the ruling in Mahlangu.

D) Justification

Finally, Section 36 of the Constitution of South Africa contains a provision that outlines in which conditions constitutional rights may be limited. It says that these may be limited to the extent that it is reasonable and justifiable, and includes the principles of the test to be applied when determining this. Yet the Court explains that in the circumstances of the case the authorities did not offer a justification for the treatment of domestic workers other than one of practicability: the extension of the protection to domestic workers would increase the number of claimants and the state needed to prepare for that. This reason cannot justify the exploitation of domestic workers (§113).

The UK/English law position

The Mahlangu case contrasts distinctively with the position of domestic workers in UK law and the approach usually taken by the English courts regarding their situation and vulnerabilities. The UK has not ratified C-189 and abstained in the vote for its adoption (there were 396 votes in favour, 16 against and 63 abstentions). This should perhaps not come as a surprise. UK legislation specifically excludes many domestic workers from some key protections. In particular, Regulation 19 of the Working Time Regulations 1998 and Regulation 23 of the Working Time Regulations (Northern Ireland) 2016 exclude those “employed as a domestic servant in a private household” from a number of central protections, including the maximum average working week of 48 hours. Domestic workers therefore frequently work extremely long hours which may violate their right to a private and family life under Article 8 of the European Convention on Human Rights (ECHR).

Similarly, section 51 of the Health and Safety at Work Act 1974 excludes “domestic servants” from its scope, meaning that their abuse and exploitation is frequently left unidentified and unprotected. During the drafting of the ILO Convention, the UK Government representative in the ILO proceedings said: “we do not consider it appropriate, or practical, to extend criminal health and safety legislation, including inspections, to cover private households employing domestic workers. It would be difficult, for instance, to hold elderly individuals, who employ carers, to the same standards as large companies” (statement by Ms Warwick, International Labour Conference Record of Proceedings 15 June 2011 25(rev), p 22).

In contrast to the Government of South Africa, we observe that there is an attempt by the UK government to justify the exclusion of domestic workers from protection of their rights on the basis of the right to privacy of the employer. Yet given the effects of these exclusions as outlined in Mahlangu, we should be sceptical about the legitimacy of the justification and the proportionality of having no inspection mechanism, given the serious impact it has on the rights of domestic workers. While the privacy of the employer is a legitimate concern, the rights of the domestic workers should also be viewed as an important consideration. For this reason, we should, instead, consider models that the ILO has presented in order to make inspections of private households possible, in order to strike the right balance between the right to private life of the employer and the rights to health and safety of the workers themselves.

In addition, domestic workers’ entitlement to the national minimum wage (NMW) is not assured in the UK. By Section 57(3) of the National Minimum Wage Regulations 2015/621, the NMW is disapplied where a series of requirements are met, including that the worker lives in the employer’s family home and is treated ‘as a member of the family’ in relation to accommodation, meals and the sharing of tasks and leisure activities. The exemption was originally intended to apply to au pairs, envisaged as those who are on a fixed term cultural or linguistic exchange and completing limited work, but in practice is frequently used as a defence by employers of domestic workers to NMW claims brought against them. In some cases employers are successful in this argument, including in the Court of Appeal case, Nambalat v Taher & ors. In other cases such as Onu v Akwiwu and Ayayi v Abu domestic workers have successfully challenged the exemption and established their entitlement to minimum wage, but only so far in individual cases that often involve quite extreme circumstances.

A broader challenge to the validity of the family worker exemption on the grounds of sex discrimination, Puthenveettil v Alexander and Others, is awaiting judgment following a remitted Employment Tribunal hearing in July 2020. At present, therefore, domestic workers are still faced with the possibility that the exemption will apply to them through the categorisation of their work as “not work” for minimum wage purposes. This exemplifies the undervaluation of domestic work noted in the Mahlangu judgment, for example at §108: “not only is domestic work undervalued, it is also not considered to be real work“.

Most domestic workers in the UK come from non-EU countries such as the Philippines, India and Indonesia, and require an Overseas Domestic Worker visa. This visa is very harsh for a number of reasons, including its short-term nature that encourages dependency on employers. The visa has been criticised in academic literature and in the Independent Review of James Ewins QC. It has been argued that its features and effects on this group of workers are such that it may violate Article 4 of the ECHR that prohibits slavery, servitude, forced and compulsory labour. The European Court of Human Rights itself has ruled that a very restrictive visa regime was incompatible with Article 4 (Rantsev v Cyprus and Russia).

Legal exclusions and restrictive visas have also been highlighted by the European Committee of Social Rights as potentially incompatible with the European Social Charter, the counterpart of the ECHR in the area of social rights. On domestic work the Committee has said that it “often involves abusive, degrading and inhuman living and working conditions for the domestic workers concerned […]” and asked “whether the homes of private persons who employ domestic workers are subject to inspection visits” and “whether foreign domestic workers have the right to change employer in case of abuse or whether they forfeit their right of residence if they leave their employer” (Conclusions 2012, General Introduction). The decision of the European Court in Rantsev and the findings of the European Committee of Social Rights should give UK courts important support and confidence when assessing the legitimacy of the immigration laws in question.

However, the English courts have often been reluctant to fully acknowledge or respond to the particular vulnerability brought about by migration status. A partial exception was the High Court’s acknowledgement in Ayayi v Abu that the Claimant domestic worker was in a vulnerable situation because she believed her visa bound her to work for the Defendants (§82). However, in Taiwo v Olaigbe, the Supreme Court was constrained by the specified list of protected characteristics in the Equality Act 2010 and thus declined to find that migration status (as opposed to nationality) was protected for the purpose of discrimination law. The Court referred to Parliament’s decision not to include immigration status in the list of protected characteristics and did not accept submissions on the Claimant’s behalf that this attribute was associated so closely with nationality that they could not be separated ((§26). This cautious approach, which is partly a function of a constrained statutory regime, contrasts sharply with the South African Constitutional Court’s recognition of intersectional and structural discrimination.

In the UK, the Overseas Domestic Worker visa also has stark implications for the social security entitlement of migrant domestic workers. It is issued with the condition of “No Recourse to Public Funds“, meaning that the holder is prevented from claiming most state benefits except in very limited circumstances. No recourse to public funds has been particularly damaging in the context of the Covid-19 pandemic, during which domestic workers have been unable to access basic financial support including Universal Credit, and many having to rely on an emergency hardship fund, despite repeated requests for the condition to be suspended. This exclusion from benefits functions differently from the point at issue in Mahlangu, since it relates to migration status rather than exclusions of domestic work as a sector. But its impact is still, in practice, to restrict social security access for some of the most vulnerable members of society – in sharp contrast to the findings in Mahlangu that social security should prioritise those whose need is greatest. If because of this domestic workers find themselves in destitution, Article 3 of the ECHR (prohibition of inhuman and degrading treatment) may be implicated, as the House of Lords ruled in relation to destitute asylum seekers in Limbuela.

Human rights law and social transformation

Mahlangu is a seminal judgment. It challenged forcefully the inequality and legislative precariousness of domestic workers and identified the historical and structural discrimination at its base; it gave them the recognition that they are entitled to and deserve; it also delivered on the transformative promise of the South African Constitution. The leading judgment should serve as an example of how human rights law can question the exclusion of domestic workers and recognise the value of their work. It is to be hoped that other courts, in the UK and across the world, will follow the example of the Constitutional Court of South Africa when the opportunity arises: that they will be prepared to question any supposed justifications for the exclusion of domestic workers from protective laws, and recognise their rights and dignity; that they will be willing to take a more structural approach to disadvantage more broadly, for instance in cases such as Mencap v Tomlison-Blake on care workers’ minimum wage protection (Court of Appeal decision noted here, now pending before the UK Supreme Court); and construe the statute against the backdrop of the gendered character of care work.

Justice Pius Langa, former Chief Justice of South Africa, wrote a few years ago that “[w]idespread transformation of economic and social conditions is beyond the powers of the courts alone. Only when our judicial commitment is coupled with legislative reform and appropriate executive action can the vast disparities that continue to exist in South Africa be eradicated. Finally, transformation is not something that occurs only in courtrooms, parliaments and governmental departments”. The social recognition of domestic work is of course a much broader endeavour. Social attitudes towards domestic workers will not change overnight. They will also not change because of a judicial ruling or legislative reform alone. A ruling like Mahlangu, though, should be welcomed for being a step towards achieving this recognition. Identifying unjust laws that place domestic workers in a position of disadvantage gives rise to a pressing duty to change the laws and give domestic workers the legal rights that they deserve.

This article was originally published on the UK Labour Law Blog