Mruke v Khan (Debarred)

For constructive dismissal under Employment Rights Act 1996, an employee must terminate the contract in response to the employer’s repudiatory breach. The breach need not be the sole or principal reason. It is sufficient if it forms part of the reasons for resignation.

An employee need not know the statutory source of an entitlement. However, knowledge that they were being paid too little may be evidentially relevant to whether underpayment was a reason for leaving. Where there is no direct evidence of the employee’s reasons, a tribunal may infer the required causal response only where that inference is safe on the facts.

The Claimant was a Tanzanian domestic worker who left the Respondent’s home after representatives of a charity and police officers attended and asked whether she wished to leave. The Employment Tribunal upheld some claims, including that she had been paid below the National Minimum Wage, but rejected her claim of constructive unfair dismissal in written Reasons dated 28 February 2013.

The Tribunal found that the underpayment was a repudiatory breach, but that it had no evidence that the Claimant left in response to it. The Claimant appealed only that conclusion. She contended that the Tribunal had wrongly required knowledge of the National Minimum Wage, had looked for a single cause of resignation, and should have inferred from the circumstances that low pay was at least one reason for leaving.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that, although the Respondent’s failure to pay the National Minimum Wage was a repudiatory breach, it had no sufficient evidence that the Claimant resigned in response to that breach.

2. Under section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal requires a repudiatory breach accepted by the employee through termination of the contract. The resignation must be in response to the breach. It need not be caused solely, or principally, by the breach; it is enough that the breach was at least part of the employee’s reasons.

3. The Tribunal had not imposed a legal requirement that the Claimant knew of her statutory entitlement to the National Minimum Wage. Such a requirement would have been erroneous. Its point was evidential: it had found that she did not appreciate that she was being paid less than she was entitled to receive, and so it was entitled to regard that fact as relevant to whether underpayment caused her departure.

4. Nor had the Tribunal wrongly searched for one exclusive reason for resignation. Properly read, it was concerned that the Claimant had given no reason at all in her statement or evidence. A tribunal can infer the necessary causal response without express evidence where the circumstances make the inference safe. Here, however, several possible reasons for leaving had been advanced, many allegations had not been proved, and reasons unrelated to pay remained possible. The inference that low pay was a reason for leaving could not safely be drawn.

5. Accordingly, the challenge disclosed neither an error of law nor perversity in the Tribunal’s conclusion.

• Employment Appeal Tribunal: dismissed the appeal and upheld the Employment Tribunal’s rejection of the constructive unfair dismissal claim.
• Employment Tribunal, Watford: in written Reasons dated 28 February 2013, found a repudiatory breach through underpayment but was not satisfied that the Claimant resigned in response to it.