EAT UNFAIR DISMISSAL – Constructive dismissal
A domestic worker (who came from Tanzania to work for her employer, spoke only Swahili, was illiterate and was paid a pittance) left her employment when an interpreter, representatives of an anti-trafficking charity and police came to her address, and she decided to go with them. She had not been paid the National Minimum Wage.
Some of her claims were upheld by the Employment Tribunal; others (such as race discrimination) were rejected, as was a claim that she had been unfairly (constructively) dismissed. This last was the only matter on which she had permission to appeal to a Full Hearing. The Employment Tribunal had found that there was a repudiatory breach in the employer failing to pay the National Minimum Wage, but said that the Claimant had not told the Employment Tribunal why she left her employment (there was no express statement of this in her witness statement, though it was well-drafted and lengthy; and it was not asserted she said anything in her evidence as to her reason(s) for going). Leaving her job had to be in response to the breach for there to be a dismissal. It was argued that this was perverse since it was obvious that breaches by the employer had caused her to go, and reliance was placed upon a description of her circumstances which the Claimant had made to a GP some days before her leaving, which had led to the visit to her address.
Held: the Employment Tribunal had no direct evidence of the Claimant’s reasons (inexplicably not set out in her witness statement) though she would be the only person who would know them. If the circumstances were such that a reason for her going must have been low pay, the decision would be in error: but the Employment Tribunal had rejected one possible reason which had nothing to do with pay (onerous hours), and listed six others which were thought by the charity to be reasons why she was leaving, only one of which the Employment Tribunal had found sustained on the facts, and only that one which directly related to her financial situation. It could not safely be inferred that at least a reason for her going was a lack of enough pay.
An argument that the Employment Tribunal had required the Claimant to have knowledge of the National Minimum Wage Act in order to act in response to the breach was not accepted, since the Employment Tribunal in context was simply noting that at the time she left the Claimant had no particular reason for thinking herself underpaid (she had, the Employment Tribunal found, received all the money she was entitled to have under the parsimonious terms of the contract made in Tanzania) and thus there was no reason in itself to think she was obviously leaving because of a failure to pay her enough. An argument that the Employment Tribunal focussed on ‘the reason’ for leaving, rather than whether part of the reasons for leaving was the repudiatory breach, failed, since it contemplated at least some reasons being considered, and the problem the Employment Tribunal found here – having listened to the witnesses over a number of days – was that it simply did not know what any of them was.
Langstaff P J
[2014] UKEAT 0241 – 13 – 2507
Bailii
England and Wales
Employment
Updated: 23 December 2021; Ref: scu.538456