Constructive Dismissal – am I entitled to bring a claim for constructive dismissal?

Constructive Dismissal is defined in section 2 of the Unfair Dismissals 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 termination to the employer”.

I am regularly meeting with clients who tell me that they are being bullied and harassed at work, sometimes by their employer, other times by a work colleague. A complaint is made against the aggressor in question, but no adequate or any steps are taken by the employer to resolve the situation and nothing is done about the allegations. This serious failure on the part of the employer, who has a duty of care towards their employees, only serves to diminish the mutual bond of trust and confidence between an employer and an employee and the employee is left with no option but to resign. Other circumstances giving rise to constructive dismissal include a unilateral reduction in pay, a deterioration in the working environment, change of job functions, change in working hours, unwarranted warnings, change of location of the job, lack of a pay rise, sexual harassment in the employment. An employer’s failure to pay tax and PRSI contributions on behalf of an employee has also been held to be sufficient grounds to entitle an employee to succeed in a claim of constructive dismissal.

However, with constructive dismissal the burden of proof is on the employee as he/she needs to prove that his/her resignation was justified and the burden of proof is a very high one. This can be contrasted with a case of unfair dismissal where the employer must prove that the dismissal was fair and justified. An employee must be able to show that their decision to terminate their employment was reasonable.

Where an employee has a difficulty in the workplace, before resorting to a claim of constructive dismissal, it is crucial that his/her employer is on “notice” of the difficulty and has been given an opportunity to resolve the matter internally. If an employer has a Grievance Procedure in place, then is must be utilised by an employee in an attempt to remedy his/her complaint before embarking on a claim for constructive dismissal.

This high burden of proof on the employee is illustrated in the recent January 2013 decision of the Employment Appeals Tribunal in the case of Daniel O’Gorman v Glen Tyre Company Limited.

In this case the claimant, Mr. O’Gorman, was a mechanic who had gone on sick leave in May, 2010 and did not return to work. He resigned from his position in September, 2010 and brought a case for constructive dismissal. The Employment Appeals Tribunal (EAT) in its decision referred to the burden of proof on the employee as being a ‘very high one’. It held that the employee must prove that his resignation was not voluntary.

The EAT must look at the contract and decide whether there has been a significant breach of the employment contract going to the root of the contract. If there has not been a breach by the employer, the EAT will then look at the conduct of the employer and employee and decide on the ‘reasonableness’ of the decision of the employee to resign.

The claim by the claimant for constructive dismissal fell under three headings:

1. The excessive workload placed on him;
2. Exclusion in the workplace, for example at lunch breaks; and
3. Being bullied and harassed in the workplace

He left work in May, 2010 and did not return due to work related stress. However, the employer stated that he did not know this until he received the second medical certificate.

The EAT held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems. Accordingly, the EAT found no significant breach of contract going to the root of the contract which would have prevented the employee from carrying out his duties as per the contract. The EAT then examined the conduct of both parties and found that the decision of the employee to resign was not a reasonable one and accordingly, the claimant’s claim failed.

If you would like further information or advice on constructive dismissal please contact Catriona Sharkey at catriona@brophysolicitors.ie

Catriona Sharkey

Brophy Solicitors