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 of this 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 by her 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. This was dealt with in the case of Conway V Ulster Bank and the Tribunals now generally take the view that unless the Complainant activated the grievance procedure and fully exhausted the internal procedure prior to resigning, a constructive dismissal has not occurred.
The alternative in such a case is the argument 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 to the Workplace Relations Commission and an Adjudicator in the first instance can choose from a range of redress options including reinstatement and re-engagement but will usually award damages in a successful case. It is important to note though that an Adjudicator can only award damages in relation to actual financial loss. No financial award for stress or personal injury arising from the employment can be granted by an Adjudicator.
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.