Introduction

Constructive dismissal arises where you terminate your contract of employment, with or without prior notice, due to the conduct of your employer. Your employer’s conduct however, must have been such that it would have been reasonable for you to terminate your contract without giving notice.

If you are dismissed you may, under certain conditions, bring a claim for unfair dismissal against your employer. If you do this and your employer accepts that there was a dismissal, it will be for your employer to show that there were fair grounds for the dismissal. Generally, a dismissal is presumed to be unfair unless your employer can show substantial grounds to justify it.

Constructive dismissal arises where you terminate your contract of employment, with or without prior notice, due to the conduct of your employer. Your employer’s conduct however must have been such that it would have been reasonable for you to terminate your contract without giving notice.

If you are dismissed you may, under certain conditions, bring a claim for unfair dismissal against your employer. If you do this and your employer accepts that there was a dismissal, it will be for your employer to show that there were fair grounds for the dismissal. Generally, a dismissal is presumed to be unfair unless your employer can show substantial grounds to justify it.

However, if you terminate your employment and you claim constructive dismissal under the Unfair Dismissals Acts it will be for you to prove that your resignation was justified.

If you are found to have been unfairly dismissed you may be placed back in your job or more commonly, you may receive compensation for the loss of earnings caused by the dismissal.

Rules

In general, you must have 12 months’ continuous service with your employer to bring a claim for unfair dismissal. Under the unfair dismissals legislation in certain cases the 12 months’ service is not a requirement.
If you wish to make a claim you should do so within 6 months of the date of the termination of employment. This time limit may be extended to 12 months in cases where exceptional circumstances have prevented the lodgement of the claim within 6 months.

You are entitled to regard your contract as terminated if:
• Your employer’s conduct amounts to an actual breach of the contract of employment or, although it falls short of such a breach, is serious enough to warrant your resignation
• Your employer’s conduct shows that they no longer intend to be bound by one or more of the essential terms of the contract
• Your employer has acted unreasonably

Conduct by fellow employees that goes unchecked by your employer may also be considered in relation to constructive dismissal.

You should also note the following points:

• In a constructive dismissal situation, it is for you to prove that your resignation was justified
• You should use any complaints or grievance procedure that is available to you before resigning
• You should also consider using any outside industrial relations procedures available to you before resigning
• You should seek detailed advice before leaving as this is a complex area of law
• You should only resign as a last resort after having used all available means of resolving the problem

Further information

For further information please email Barry Crushell of Aperture Partners Advisory at bcrushell@aperturepartners.ie or call 01-9053503.

Please note that the material contained herein is for general information purposes only and does not constitute legal or other professional advice. Reference accurate at time of publication but subject to change.