Mwanahamisi Mruke v Saeeda Kamal Khan

JurisdictionEngland & Wales
JudgeLord Justice Patten,Lord Justice Singh,Lord Justice Hickinbottom
Judgment Date23 February 2018
Neutral Citation[2018] EWCA Civ 280
CourtCourt of Appeal (Civil Division)
Date23 February 2018
Docket NumberCase Nos: A2/2014/1299 & A2/2014/2789

[2018] EWCA Civ 280

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HHJ PETER CLARK and Lay Members

MR JUSTICE LANGSTAFF (P) and Lay Members

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Patten

Lord Justice Hickinbottom

and

Lord Justice Singh

Case Nos: A2/2014/1299 & A2/2014/2789

Between:
Mwanahamisi Mruke
Appellant
and
Saeeda Kamal Khan
Respondent

Ms Karon Monaghan QC (instructed by the Anti-trafficking and Labour Exploitation Unit) for the Appellant

The Respondent did not appear and was not represented

Hearing date: 24 January 2018

Judgment Approved

Lord Justice Singh

Introduction

1

There are two appeals before this Court. They arise out of the same proceedings before the Employment Tribunal at Watford (“ET”). In a decision sent to the parties on 28 February 2013 the ET allowed the Appellant's claims for: unlawful deduction from wages arising out of the Respondent's failure to pay her wages at the rate of the national minimum wage; outstanding holiday pay; and a failure to give the Appellant proper rest breaks to which she was entitled. The ET dismissed her claims for racial discrimination (both direct and indirect) and harassment; and unfair dismissal based on what she contended was her constructive dismissal.

2

The Appellant's claim before the ET was issued on 6 May 2010 and relates to events which ended in February 2010, when she left the Respondent's employment. Accordingly, the applicable law in relation to the complaint of racial discrimination is to be found in the Race Relations Act 1976 and not the Equality Act 2010 (the material provisions of which came into force on 1 October 2010). The claim for unfair dismissal was brought under the Employment Rights Act 1996, which has been in force at all material times.

3

One of the reasons why there has been considerable delay in this case is that the proceedings before the ET were stayed pending a criminal trial against the Respondent arising from the way in which she was alleged to have treated the Appellant. In fact there had to be two trials because her initial conviction was quashed by the Court of Appeal (Criminal Division). The Respondent was acquitted at her retrial.

4

The Appellant appealed to the Employment Appeal Tribunal (“EAT”) against the dismissal of those claims which had been decided against her by the ET. The Respondent for her part appealed against the decision which had been made in favour of the Appellant.

5

The EAT held a preliminary hearing on 27 March 2014. HHJ Peter Clark, sitting with two lay members, Mr T. M. Haywood and Professor K. C. Mohanty JP, dismissed the Appellant's appeal against the dismissal of her claim for racial discrimination, and also dismissed the Respondent's appeal. However, the EAT permitted the Appellant's appeal against the dismissal of her claim for unfair dismissal to proceed to a full hearing.

6

The Appellant's substantive appeal in the claim for unfair dismissal was dismissed after a hearing on 25 July 2014 before Langstaff J (the then President of the EAT), sitting with Mr D. J. Jenkins OBE and Mr B. M. Warman.

7

In between those two hearings, on 28 May 2014, the Respondent was debarred from taking further part in the appeal because she had failed to file an Answer to the Notice of Appeal in accordance with rule 6(2) of the Employment Appeal Tribunal Rules 1993 and had failed to respond to an order of the EAT dated 13 May 2014.

8

The Appellant has appealed to this Court against both decisions by the EAT.

9

By an order dated 27 August 2014 Sir Stephen Sedley directed that the application for permission to appeal should be adjourned for renewal in open court on notice.

10

On 10 December 2015 Elias LJ granted permission to appeal against the dismissal of the claim for unfair dismissal; but adjourned the application for permission to appeal against the dismissal of the claim for racial discrimination on the basis that the hearing in the cases of Onu v Akwiwu and Taiwo v Olaigbe was shortly due to take place in the Supreme Court. Judgment was given by the Supreme Court in those cases on 22 June 2016: [2016] UKSC 31; [2016] 1 WLR 2653.

11

On 21 November 2016 Elias LJ granted permission to appeal against the decision of the EAT in relation to direct racial discrimination but dismissed the appeal in relation to indirect discrimination, noting that, in his view, it was “indistinguishable” from the case of Onu and Taiwo.

12

As I have mentioned, the Respondent was debarred from taking further part in the proceedings before the EAT on 28 May 2014. She was served with the papers for the hearing before this Court as a matter of courtesy but did not take part and was not represented. The Appellant was represented by Ms Karon Monaghan QC. We are grateful to her for the careful and fair way in which she presented her submissions, in which she sought to assist the Court, taking account of the fact that the Respondent was neither present nor represented.

Material Legislation

13

Section 1(1) of the Race Relations Act 1976 (“the 1976 Act”) provided that:

“A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons.”

14

“Race” for these purposes includes “nationality” and “national origins”: section 3(1).

15

Section 3(4) of the 1976 Act provided that:

“A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

16

Part II of the 1976 Act prohibited discrimination on racial grounds in the employment field: see in particular section 4.

17

Section 54A(2) of the 1976 Act provided that:

“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a) has committed such an act of discrimination … against the complainant,

(b) …

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

18

The Appellant's claim for unfair dismissal was brought under Part X of the Employment Rights Act 1996. Nothing in this case turns on the specific wording of that Act. However, it is important to note that the concept of “dismissal” includes what is usually known as “constructive dismissal”, i.e. where an employee resigns “in circumstances in which he is entitled to terminate [the contract] without notice by reason of the employer's conduct”: section 95(1)(c).

19

It is well established that those circumstances are ones in which the employer commits a repudiatory breach of the contract: see Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, at 227 (Lord Denning MR). It is also well established that, “for a constructive dismissal to arise, the employee must resign in response to a fundamental breach of contract”: see Nottinghamshire County Council v Meikle [2004] EWCA Civ 859; [2004] IRLR 703, at para. 30 (Keene LJ). However, it is not necessary, as a matter of law, that the employee should have told the employer “that he is leaving because of the employer's repudiatory conduct”: see Weathersfield Ltd v Sargent [1999] ICR 425, at 431 (Pill LJ). As Pill LJ went on to say in that passage:

“Each case will turn on its own facts and, where no reason is communicated to the employer at the time, the fact-finding tribunal may more readily conclude that the repudiatory conduct was not the reason for the employee leaving. In each case it will, however, be for the fact-finding tribunal, considering all the evidence, to decide whether there has been an acceptance.”

Factual Background

20

The ET set out its findings of fact from para. 16 of its judgment. A brief summary of the factual background can be gleaned from para. 18.

21

The Claimant was born on 12 October 1963 in Tanzania. She is black. She had no education of any kind and is illiterate.

22

The Respondent was born and brought up in Pakistan. She married Dr K. K. Khan in November 1964. He had been born and brought up in Tanzania. They moved to Tanzania after they were married. Dr Khan ran a hospital in Tanzania.

23

From 1987 the Respondent lived for most of the time in the United Kingdom with their two children, who had been born in 1971 and 1980 and who both had disabilities.

24

Dr Khan died in 1998. The Respondent then became responsible for the hospital which Dr Khan had run in Tanzania. The Claimant had previously worked at that hospital.

25

In 2006 arrangements were made in Tanzania for the Claimant to come to the UK to work assisting the Respondent in her home, in particular doing such work as cleaning and looking after her children.

26

The Claimant managed to leave the employment of the Respondent in February 2010.

The judgment of the ET

27

After setting out the procedural history of the proceedings at paras. 1–13, the ET set out the long list of issues which it had to determine at para. 14 of its judgment. It then set out relevant matters of law at para. 15. In particular it noted the provisions of the 1976 Act at paras. 15.11–15.14. At para. 15.15 the ET referred in terms to section 54A of the 1976 Act and the decision of this Court in Igen Ltd v Wong [2005] EWCA Civ 142; [2005] ICR 931.

28

From para. 16 the ET set out its findings of fact. It should be noted that, at para. 16, it said that, having heard the Appellant and the Respondent give evidence at the hearing, it found that both were “to some extent, unreliable witnesses.” The ET then set out the factual background at...

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