LS Legal Solicitors

Underpaid domestic worker wins unfair dismissal claim

Saturday 10th March 2018

Following a lengthy 8-year legal battle, in a recent case of Mruke v Khan [2018] EWCA Civ 280, a domestic worker who was paid £10 per month (33 pence per hour) has succeeded in a claim against her employer for unfair constructive dismissal. The Claimant, who came to the UK from Tanzania to work in her employer's home supporting 2 disabled children, brought claims for failure to pay minimum wage and holiday pay, the denial of rest breaks, direct and indirect race discrimination and harassment and unfair constructive dismissal.

Employment Tribunal Decision

Initially the case only partly succeeded in the Employment Tribunal, which allowed the claims for unpaid wages, failure to pay minimum wage, holiday pay and failure to provide rest breaks and adequate living space but rejected the claims for direct race discrimination on the basis that the reason for the ill-treatment was because of the Claimant's low social status, not because of her Tanzanian nationality.

The Claimant's constructive unfair dismissal claim also failed because:

1. She had not provided the Tribunal with any specific reason for leaving her employment and therefore the Tribunal was not satisfied that she resigned in response to her employer's failure to pay her National Minimum Wage;

2. The Claimant was not aware of her entitlement under the National Minimum Wage Act 1998 and therefore she could not have resigned in specific response to her employer's failure to pay it to her.

Employment Appeal Tribunal Decision

The EAT upheld the conclusions of the Employment Tribunal, but added an observation that where an employee had been treated so badly that they must have resigned because of it, the reason for their resignation may be obvious, even if it is unstated.

The Court of Appeal Judgment

On the Claimant's appeal to the Court of Appeal against the dismissal of her direct race discrimination and constructive unfair dismissal claims, the Court reached conclusion:

1. The reason why the employer had employed the Claimant was due to her socio-economic characteristics (of being uneducated, illiterate and poor). As her nationality was separable from her economic status, this meant that the ill-treatment she was exposed to did not amount to discrimination on the basis of nationality. The Claimant's discrimination claim failed for the same reasons given by the Tribunals;

2. The Employment Tribunal was wrong to reject the Claimant's claim for a breach of the implied term to pay her the National Minimum Wage. The purpose of the National Minimum Wage 1998 was to protect workers who are vulnerable to exploitation due to their illiteracy and/or ignorance of their legal rights, including those recruited from overseas. The Claimant was clearly a prime example of the type of employee who required such protection. That purpose had to be given full effect and it was wrong for the Tribunal to hold the Claimant's ignorance of her legal rights against her by rejecting the argument that she resigned in response to the employer's failure to pay her properly;

3. In a constructive dismissal case, even where a Claimant does not specifically state the reasons for leaving their employment, a Tribunal may conclude that the Claimant must have resigned due to the employer's conduct, particularly where that conduct is 'egregious' or the collection of acts are obviously or 'shockingly' bad. This was so, despite the fact that the evidence here suggested that the employer's withholding of pay had kept the Claimant in her employment (because she could not afford to run away and support herself) rather than driven to leave her employment. On this rare occasion, the Tribunals' conclusions to the contrary were overturned as 'perverse'.

Conclusion

The Court of Appeal dismissed the Claimant's appeal against the Tribunal's rejection of her race discrimination claim but allowed the Claimant's appeal against the Tribunal's rejection of her unfair constructive dismissal claim.

Mruke clarifies that it is not necessary for an employee to know about their legal rights or that a specific piece of legislation has been breached in order to resign and claim constructive dismissal. The Court also recommended that minimum wage legislation designed for the benefit of persons who are unlikely to be aware of their legal rights must be interpreted in a way that advances the intentions behind the law.

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