In order to succeed in a claim of constructive unfair dismissal, a tribunal has to find that the claimant resigned in response to a fundamental breach of their contract. In Mruke v Khan, the Court of Appeal held that claimants do not need to be aware of their rights under their contract to bring a claim of breach of those rights.
Ms Mruke, who is black and from Tanzania, came to the UK in 2006 to work in Ms Khan’s home to carry out cleaning duties and look after her two disabled children. She had previously worked for her for many years in the hospital that her husband ran in Tanzania. Ms Mruke was illiterate and could not speak English.
She left Ms Khan’s employment in February 2010 and made a number of tribunal claims, including unlawful deduction from wages; outstanding holiday pay; and a failure to give her the proper rest breaks to which she was entitled. In addition, she brought claims for race discrimination and unfair constructive dismissal.
The tribunal proceedings were, however, stayed pending a criminal trial against Ms Khan about allegations of mistreatment of Ms Mruke. For instance, that she made her sleep on a thin mattress on a concrete floor, that she was provided with little food and that she was paid about 33 pence per hour. After Ms Khan was acquitted, the employment tribunal claims were finally heard.
Tribunal and EAT decisions
The tribunal found in Ms Mruke’s favour in relation to the first three claims,but dismissed her claim for discrimination on the basis that she had not been treated less favourably than a hypothetical comparator would have been.
It also dismissed her unfair dismissal claim, holding that she had not resigned in response to the failure to pay her the national minimum wage as she did not know she was entitled to it. She simply left the house when representatives of a charity and the police arrived and asked her if she wanted to leave.
For its part, the EAT disagreed with the tribunal that Ms Mruke had to know about her rights to the minimum wage to establish constructive unfair dismissal. However, as she did not resign because she was being paid less than her entitlement, she could not therefore be said to have left work for that reason.
Decision of Court of Appeal
The Court of Appeal also rejected the claim of discrimination holding that the reason for the less favourable treatment had nothing to do with her nationality and everything to do with her socio-economic circumstances.
However, it held that it was an error of law to decide that because she was unaware of her rights under the National Minimum Wage that she could not be said to have resigned in respect of a breach of those rights. Instead, this was one of those contracts which had been so “egregiously performed” by the employer that it was obvious that the reason Ms Mruke left had “everything to do with those conditions, which collectively amount to a fundamental breach of contract."
The reality was that Ms Mruke “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 [Ms Mruke] must have been because of a repudiatory breach, notwithstanding the lack of express reasons. That was quite simply obvious”.
It therefore upheld her claim of constructive dismissal.
This is an interesting decision which takes the law in a slightly different, and very uncertain, direction. The court had some room to do this because the claimant had not expressly given her reasons for leaving, and because she was clearly such a deserving case that it would have been highly unjust to deny her a remedy. Its ‘fuzziness’ though does raise lots of questions for future cases. For instance, how bad is ‘egregious’, how big does an underpayment need to be to be egregious and so on. Perhaps it is one best considered to rest on its own facts, without wider importance.