English

Employers: Get your free copy of "The 16 Common Employment Law Mistakes that Most Irish Employers Make" and my regular money saving employment law tips via email. Sign up below.

Instant access. We respect your privacy.

constructive dismissal

What is constructive dismissal?Constructive dismissal in Ireland is covered by the Unfair Dismissals Act, 1977 in section 1(b) as it provides that a dismissal is, among other definitions,

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

 

It is one of the most common employment claims taken by employees against former employers.

 

Essentially where an employee terminates his employment as a result of his employer’s conduct he may be able to successfully bring a case for constructive dismissal.

 

It is vitally important to note that in a constructive dismissal case the onus of proof is on the employee as he/she needs to prove that his/her resignation was justified. This can be contrasted with a case of unfair dismissal where the employer must prove that the dismissal was fair and justified.

 

Examples of potential constructive dismissal cases

Some examples of circumstances giving rise to a claim for constructive dismissal are set out below. However it is vitally important to understand that in all legal cases, the particular circumstances of the case will be a huge factor in success or failure and the examples below are not definitive or exhaustive.

 

  • A unilateral reduction in pay

This may give rise to a case for a successful constructive dismissal case as it may be a material breach of a fundamental clause in the contract of employment.

 

  • A change in job function

A unilateral change in the functions of your job may give rise to a successful constructive dismissal claim.

 

  • Adverse working environment

 

  • Change of work location

Where the contract of employment does not make provision for a change of work location it can give rise to a claim.

 

  • Undeserved warnings
  • Sexual harassment in the workplace
  • Abuse in the workplace
  • Change in work hours
  • Conduct of fellow employees.

All of the examples above have given rise to successful claims for constructive dismissal on one occasion or another; however this does not mean that these situations will automatically lead to a successful claim.

 

Remedies for constructive dismissal

Possible remedies for unfair or constructive dismissal which the EAT (Employment Appeals Tribunal) can order include

  • Reinstatement in the job
  • Re-engagement
  • Compensation.

 

To bring a case under the Unfair Dismissals Act, 1977 you will need to have at least one year’s continuous service with the employer and have exhausted all internal grievance procedures of the company.

 

You must also bring your claim within 6 months of the date of termination of your employment (12 months in exceptional circumstances) and can bring it to a Rights Commissioner who will make a recommendation or you can bring your complaint directly to the Employment Appeals Tribunal who will issue a determination.

 

This determination of the EAT can be appealed to the Circuit Court by either you or the employer.

 

Word of warning to employees

Take legal advice before doing something as drastic as resigning your position of employment and exhaust all internal grievance/complaints procedures as this will ultimately strengthen any case you bring.

By Terry Gorry Google+

Unfair dismissal and constructive dismissal cases can prove very expensive for employers, not to mention traumatic occasions for employees.

Unfair dismissal in Ireland is governed by the Unfair Dismissals Act 1993 and two points need to be made about this legislation at the outset-

1. an employer must have substantial grounds for dismissing an employee

2. in doing so the employer must apply fair procedures to the process.

unfair dismissal

The Unfair Dismissals Act covers people who have been in employment for at least 52 weeks continuous service. Employees who are not covered include FAS trainees, members of the Defence Forces and Gardai and civil servants.

It may seem blindingly obvious but only employees may use the legislation in respect of a termination of employment-sub contractors for example would not be covered.

 

Constructive Dismissal

An employee may succeed in a claim for constructive dismissal in circumstances where the employee resigns the employment as a result of the employer’s conduct towards the employee.

Circumstances giving rise to this situation include a reduction in pay, a deterioration in the working environment, change of job roles, unwarranted warnings, change of location of the job and many others. Not all of these situations will always give rise to a successful claim for constructive dismissal but these are the kinds of things that employers must be very careful about if they don’t want to end up in the Employment Appeals Tribunal.

constructive-dismissal

However employees on probation up to a period of one year are excluded from the protection of the legislation.

Unfair Dismissal Categories

There are a number of categories of dismissals which the Unfair Dismissals Act 1977 and 1993 deem to be automatically unfair.

They are

1. trade union membership

2. the colour, race or sexual orientation of the employee

3. the employee’s religious or political opinions

4. where the employee is involved in legal action against the employer

5. the employee’s age

6. the fact that the employee is a member of the traveling community

7. the employee becoming pregnant

8. the employee taking part in industrial action.

These are the main grounds which the legislation deems to give rise to an unfair dismissal claim and are deemed by the law to be automatically unfair.

 

Redundancy Defence

The employer has a defence in the form of redundancy but he must be able to show that the employee has been fairly selected for redundancy. However if the employer seeks to employ the redundancy defence he can expect that if an unfair claim is made against him he will find that his redundancy defence is put under a fair degree of scrutiny.

 

For example, it is not enough that the employer can show that his workforce numbers requirement is expected to decline sometime in the future-he must be able to show that is requirements will lower in the very near future to the redundancy that he has just carried out.

 

Fair Procedure

The Employment Appeals Tribunal is very strong on fair procedure in relation to the termination of an employee’s job; they have held many times in the past that if they find that fair procedure was not followed then they will deem the dismissal to be unfair, regardless of the circumstances.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
member-of-the-law-society