If you’re employed you will have an employment contract, which will give you certain rights. Sometimes the contract can be terminated by your employer; but apart from quitting a job to seek new opportunities, there is another more unfortunate reason why an employee might decide to end their employment contract.
What is constructive dismissal?
Constructive dismissal: is where an employee leaves their employment because they can no longer endure their situation at work. The unbearable situation could be due to circumstances beyond the employee’s control. In most cases, this is brought about by an employer or manager’s behaviour, or new conditions that would be a breach of the employees contract. Examples of conditions that could make employment unsuitable for the employee range from reductions in pay, to a change in workplace location.
In constructive dismissal cases, the employee is claiming that they had no other option but to leave the place of employment — with or without notice of termination. If you leave without notice, you should have very strong reasons for doing so!
There are other more serious instances where an employee may opt for constructive dismissal; a common and unfortunate situation for a many is being bullied, in the workplace, by a supervisor.
What’s the difference in constructive dismissal, unfair dismissal and wrongful dismissal?
In constructive dismissal the employee is terminating their own contract, so the onus is on the employee to prove that the dismissal was constructive. Whereas with unfair dismissal, the employer must prove that the dismissal was fair. Employees can claim for unfair dismissal, and most dismissals are seen as unfair, unless an employer can demonstrate grounds for the firing.
A wrongful dismissal is a little different from unfair dismissal, as it focuses on a contractual breach such as failing to give an employee the correct length of notice.
What are the legal options?
If you have left your employment by means if a constructive dismissal, there are options open to you to claim compensation. There might be one or two basis of claiming redress, for example if you left due to being bullied by your supervisor, you could also have grounds for personal injury case (if there’s medical evidence) as well as pursuing a constructive dismissal.
Can you resign and claim for constructive dismissal?
Yes, if you have proof that the resignation was constructive, and you resigned shortly after an incident — that was in breach of your contract. You should state the nature of the contractual breach in your resignation letter. The rules for a constructive dismissal are:
• You must be employed by the company for 12 consecutive months before the breach incident occurred. But there are exceptions for example a woman terminating her employment contract because she was being victimised due to being pregnant.
• You should make a complaint to the Workplace Relations Commission (WRC).
• You should start your claim process within six months of terminating your contract.
How to prove a constructive dismissal?
A constructive dismissal should be taken very seriously by the employee, they need to be sure that it’s the best or only thing to do in their situation. In law, there a two tests used to prove constructive dismissal:
• The employee was entitled to resign; or
• It was reasonable for the employee to resign.
How to win a claim for constructive dismissal?
If you’re an employee, you must exhaust all other possible avenues of resolution before terminating their employment contract. Especially, follow any grievance procedures, and make a formal complaint to HR. This will make your legal case stronger. And, if you don’t exhaust all grievance procedures, you run the risk of your employer claiming that they didn’t realise that there was an issue!
Constructive dismissal cases can be more difficult to win in court compared to unfair dismissal cases, as the employee must have substantial proof.
• There must be a breach, or an anticipated breach of the employee’s contract.
• The breach must be significant enough that it would give reason for the employee to leave employment.
• The employee must leave because of the reported incident or breach, and not for some other unrelated incident.
• The employee should terminate the contract reasonably soon after the breach occurred.
A very successful case for constructive dismissal was won by a lady in County Meath, after a period of sick leave, she tried to return to work but was faced with obstacles and contractual changes, that made her feel demoted from her previous position. The company suspended her until she agreed to the new terms of contract, the suspension amounted to a constructive dismissal, and the employee in the case was awarded €90,000 in damages.
The unfair dismissals Act 1977-2001, is one of the most important pieces of employment legislation, the act provides for intervention or redress in cases of constructive and unfair dismissal cases. Under this act compensation for loss for earning due to the dismissal can be claimed.
Redress in employment cases can be reinstatement (going back to the same position before the dismissal), re-engagement (going back to the same job or another suitable position) and/or monetary compensation. Compensation is the preferred option, as the relationship between the employee and employer is likely to have deteriorated.
The Last Straw
The Last Straw principle is when an employee resigns after a series of actions by their employer, rather than a single serious breach of contract. The final act, that lead the employee does not have to be as serious breach but it’s the cumulative effect of the acts that leads to a serious breach.
If you are thinking about leaving your employment and claiming for a constructive dismissal, remember the burden of proof on you is a heavy one, and it can be a difficult case to win. So, if you are experiencing work related stress, are being harassed in some way or are being subjected some other breach of contract, you should approach your supervisor and lodge a complaint. If your complaint is ignored, then consider talking to one of our employment solicitors for help and advice.
Don’t delay, please call us now on +353 1 264 5555 or complete our Online Enquiry and we’ll be delighted to help you.