In Mruke v Khan [2018] EWCA Civ 280, the Court of Appeal had to decide whether a domestic worker who resigned after being paid only 33 pence per hour but who was unaware of her right to the national minimum wage could claim constructive dismissal.

Facts

Ms Mruke was a national of Tanzania and was employed as a domestic worker by London-based Mrs Khan, a former hospital director. Ms Mruke was 54 years old, uneducated and illiterate. She could not speak English. Mrs Khan paid Ms Mruke 33 pence per hour, required her to work 18 hours a day, made her sleep on the floor and barred her from contacting her family. Ms Mruke resigned after about four years and claimed against her employer for unlawful deductions from wages, holiday pay, failure to allow proper rest breaks, constructive unfair dismissal and race discrimination.

Employment tribunal decision

The first three claims were successful but the employment tribunal (ET) dismissed Ms Mruke's claims for constructive unfair dismissal and discrimination.

The ET found that Ms Mruke had not been treated less favourably than a hypothetical comparator and so her discrimination claim failed. It also found that, as Ms Mruke had not known about her right to be paid the national minimum wage, she could not have resigned in response to that breach. Ms Mruke had given evidence through an interpreter at the final hearing and had not given any reasons for her resignation at all. She had explained that she had stayed with Mrs Khan for so long because she had no money and nowhere to go but the ET found that this was not the same as claiming to have resigned because she felt she was entitled to more money. Ms Mruke appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal decision

The EAT dismissed Ms Mruke's appeals in relation to both discrimination and constructive dismissal. While the EAT decided that the ET had erred in law when it said that Ms Mruke must know about her rights before she could be found to have resigned in response to a repudiatory breach of them, it agreed with the ET that she was still required to show that she had resigned in response to a repudiatory breach. Ms Mruke appealed to the Court of Appeal (CA).

Court of Appeal decision

The CA dismissed the appeal in relation to race discrimination. Lord Justice Singh decided that the ET was right to find that Ms Mruke was not less favourably treated on the basis of race, but noted that she had been treated unfavourably because of her socio-economic circumstances. However, he went on to say that she had clearly been unfairly dismissed and that the ET's decision that she had not been was "perverse". The Court was able to reach its conclusion on constructive dismissal because Ms Mruke had not explained her reason for resigning. In the absence of any express reason, the Court was able to apply the principle of "egregious performance and obviousness", as discussed by the EAT, in order to find in Ms Mruke's favour.

Singh LJ stated: "…the reality was that the Appellant was being paid the equivalent of 33 pence an hour for the work that she was doing. That was not just slightly below the national minimum wage, it was shockingly so. This was a case in which there was an "egregious" breach and the circumstances were such that the termination of the contract by the Appellant must have been because of a repudiatory breach, notwithstanding the lack of express reasons. That was quite simply obvious."

The Court decided that, given the passage of time, it was not appropriate to remit the decision to the ET and substituted its own decision that Ms Mruke had been unfairly dismissed by Mrs Khan.

Comment

The wider reaches of this case should, hopefully, be limited to exceptional cases, but commentators have suggested that litigation could develop on the subject of what amounts to "egregious" in underpayment cases. Clearly, if a claimant gives express reasons for resigning, it is unlikely that they will then be able to argue that they resigned for another reason.