Constructive Dismissals – Information & Advice
Constructive dismissal is defined in section 1 of the Unfair Dismissal Act 1977 as:
“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.”
Notice of termination is one of the fundamentals of employment law and the requirement to give notice by either the employee or the employer may only be dispensed with in very particular circumstances.
In any constructive dismissal action the fact of dismissal is put in dispute as the employer will not accept that there was a dismissal.
The employee, who is claiming to have been constructively dismissed, bears the onus of proving that a dismissal in fact occurred, and further that it was unfair. (In theory if dismissal can be shown to have occurred, the burden should shift to the employer to justify the dismissal as reasonable but this is not what happens in practice.)
Accordingly it is for the employee to prove that there was a dismissal and that it was unreasonable; this is a very heavy onus of proof to bear and a note of caution must always be entered in this regard.
A constructive dismissal can arise in a number of ways. For example an employer may treat an employee in such a way as to make the employee’s position untenable. Examples would include where an employer significantly diminishes an employee’s work or responsibility or treats them in a manner which demeans them or causes them to consider their position and future with the employer.
The most famous recent case is that of journalist Liz Allen taken against Independent Newspapers.
Ms Allen was awarded over €70,000 by the Employment Appeals Tribunal having succeeded in her claim for constructive dismissal against her employer, Independent Newspapers.
Employed as a Crime Correspondent with the Sunday Independent newspaper, it was the EAT’s view that she did not contribute in any way to her dismissal and that she as such had been constructively dismissed.
The Tribunal heard that Ms. Allen had been isolated at work, and that she had had her confidence and health undermined. She had, she believed, been left with no option but to resign.
Attempts had been made by Ms. Allen to have the matters resolved through the internal procedures at the Sunday Independent. The Tribunal heard that two colleagues in particular had been hostile towards Ms Allen.
Any attempt to unilaterally vary the terms of your contract of employment could be considered a significant breach going to the root of the contract, relating for example to remuneration and the type of work to be carried out.
There must therefore be a breach of contract and further that such breach was unreasonable.
The challenge in these types of cases is often the absence of any recorded attempts by the Applicant to formally complain about the inappropriate conduct or to invoke any grievance procedure (if any in fact existed). The employer/respondent will often argue that the employee should have raised their concerns and made a complaint about the conduct and that treating oneself as dismissed was an overreaction.
In such a case it would therefore be argued that any unilateral variations to a contract were so fundamental that the Applicant was entitled to consider himself so dismissed and that the absence of formulating a complaint is not detrimental to the claim.
The position or status of the person against whom the complaint is made is also generally relevant, in that if it is that the person complained against is in a position of authority, and not simply another employee, it would strengthen the claim that this gave rise to the untenable situation.
Usually this action would be taken before the Employment Appeals Tribunal and the Tribunal will usually award damages in a successful case but can only award damages in relation to actual financial loss. It is important to note that no awards in relation to stress or personal injury arising from the employment can be granted in the Employment Appeals Tribunal.
The procedure for claiming constructive dismissal is similar to that of an Unfair Dismissal claim save that the onus of proof is shifted as noted above.
To find out more about your employment rights call us on 1890 88 90 90 or complete the form above.