“Constructive dismissal” is the term used where an employee is forced, by the behaviour or conduct of their employer, to quit their employment.
This is contrasted with actual dismissal where the employer has terminated the employment.
After 52 weeks the Unfair Dismissal Act applies. If the employer terminates the employment (actual dismissal) the burden of proof is on them to show the dismissal was reasonable.
For a constructive dismissal claim, the burden of proof is on the person who has left to show that there were substantial grounds justifying the dismissal. This conduct must be of such a nature that it leaves the employee with no reasonable choice but to end the contract.
The concept of constructive dismissal exists to provide individuals with a recourse against their former employers who have created a hostile work environment, effectively forcing them out of their jobs.
Should I take a constructive dismissal case?
Proving a claim of constructive dismissal is no simple task. To establish a successful claim, an ex-employee must demonstrate that the employer’s misconduct was
- severe enough to warrant their departure.
- they also must show that they made genuine efforts to exhaust all available avenues for resolution within the workplace, at the time of the conduct. This typically involves engaging in grievance procedures and filing formal complaints.
The logic for the requirement to exhaust all internal remedies is quite simple. The employer must be made aware and given an opportunity to correct the behaviours and complaints. If they are not made aware, they cannot be held responsible.
Therefore, if you are contemplating leaving your job with the intention of pursuing a constructive dismissal claim, it is crucial to seek legal advice beforehand and to exhaust all internal remedies. In practice, it is always easier to pursue a remedy while still employed. However, if you have already resigned from your position, it is still worthwhile to consult with a legal professional regarding the potential for a constructive dismissal claim, as they can assess the strength of your case.
As an employer, what conduct would warrant a constructive dismissal?As an employer, it is essential to understand the conduct that may warrant a constructive dismissal claim. In Irish Law, there are two situations that would normally amount to constructive dismissal:
1. Fundamental Breach of Contract
A fundamental breach of contract occurs when the employer’s conduct constitutes a serious violation of the employment contract. The conduct must be so grave that it allows the employee to resign and be released from further obligations.
Some examples are;
- Demotion without reason or warning
- Significant alterations in job responsibilities without valid justification or prior notice, and absence of any acknowledgment in the contract regarding the possibility of job changes without warning.
- Reducing pay without warning or reason
2. Reasonableness Test
In cases of constructive dismissal, the reasonableness test can serve as an alternative or complementary argument to the fundamental breach of contract claim. The test asks the question of whether the employer’s conduct was sufficiently unreasonable that it would be unjust to expect the employee to continue enduring it. In other words, does the court feel that the employer’s action justified the employee’s choice to leave without notice.
One challenge associated with employing the reasonableness test is that it places the burden of proof on the employee to establish that their resignation was not voluntary. In practice, this can be a daunting task to accomplish.
Additionally, the reasonableness test for constructive dismissal often presents challenges for former employees due to its strict adherence to four key rules:
- Objective nature: The test focuses on the objective perspective, rather than regarding how the employee personally experienced the situation. Instead, it examines how an average, reasonable person would perceive the circumstances. The standard for reasonableness is determined by the adjudication officer.
- Conduct: The test requires a thorough examination of the actions and behaviour of both the employer and the employee. Each party’s contributions to the situation are evaluated to determine their impact.
- Cumulative effect: The test considers the overall conduct of both the employer and the employee, and it considers the cumulative effect of their actions and behaviours, rather than focusing solely on individual incidents.
- No Justification: To establish constructive dismissal, it must be proven that the employer’s conduct was unreasonable and lacked a valid justification.