Constructive Dismissal Law In Practice
Constructive dismissal is one of the most misunderstood areas of Irish employment law. Many employees walk out of a toxic workplace believing they have a strong case, only to find their claim fails on a technicality they could have avoided.
If you’re considering resigning because of how you’ve been treated at work, read this first. What you do before you resign is just as important as the reasons behind it.
What Is Constructive Dismissal?
Constructive dismissal occurs when an employee resigns, but argues that the resignation was not truly voluntary, it was forced by the employer’s conduct. In effect, you are saying: “I didn’t quit. I was pushed out.” Under Irish law, if you claim constructive dismissal, you are claiming you were unfairly dismissed, even though you were the one who left.
The Burden of Proof Is on You
This is the critical difference between a standard unfair dismissal claim and a constructive dismissal claim. In a normal unfair dismissal case, the employer must prove the dismissal was fair.
In a constructive dismissal case, you must prove that your employer’s conduct justified your decision to resign.
The fact of dismissal itself is in dispute, your employer says you resigned; you say you were forced out. That means the onus falls squarely on you to establish the facts. This is a high bar, and it’s where most claims run into difficulty.
The Two Tests: Contract Test and Reasonableness Test
To succeed in a constructive dismissal claim, you generally need to satisfy one of two tests: The Contract Test, your employer’s conduct amounted to a significant breach of your contract of employment, either an express term or an implied term such as the duty of mutual trust and confidence.
The Reasonableness Test, your employer’s conduct was so unreasonable that you had no option but to resign. The behaviour must go beyond ordinary workplace frustrations, it must be conduct that no reasonable employee should be expected to tolerate.
In practice, many claims rely on the reasonableness test. But here’s the catch: if you’re relying on reasonableness, the WRC and Labour Court expect you to have acted reasonably too.
You Must Use Internal Procedures First
This is the single biggest reason constructive dismissal claims fail in Ireland, and it cannot be stressed enough.
Before you resign, you are expected to exhaust all internal grievance procedures available to you. If your employer has a grievance procedure, a dignity at work policy, or a bullying and harassment policy, you are expected to use them.
The Labour Court made this clear in Ranchin v Allianz Worldwide Care, holding that a complainant who relies on the reasonableness test must act reasonably themselves by giving their employer the opportunity to address the grievance. The employee must demonstrate they pursued the issue through the procedures available before taking the step to resign.
The Employment Appeals Tribunal reinforced this in Travers v MBNA Ireland Ltd, finding that the claimant’s failure to exhaust the grievance procedure was fatal to his case. The Tribunal held that in constructive dismissal cases, it is incumbent on the claimant to use all internal remedies unless they can show good cause that the process itself was unfair.
In a WRC case involving a contracts manager at a façade systems manufacturer, the complainant resigned after a heated incident with management following a period of ongoing tension. However, the WRC found that the employer had both a Grievance Procedure and a Dignity at Work Policy in place, neither of which the complainant had invoked. The claim failed because the complainant did not give the employer a proper opportunity to address his concerns before walking out.
When Can You Skip the Grievance Process?
There are limited circumstances where you may not be required to exhaust internal procedures before resigning. These include situations where:
- The grievance process itself is demonstrably unfair or biased
- The person you would need to complain to is the person responsible for the conduct
- There is a genuine and immediate risk to your health or safety
- The employer has made it clear, through words or actions, that raising a grievance would be futile
These exceptions are narrow, and you will need strong evidence to rely on them. The default expectation is that you follow the process.
Both Sides Are Examined
It’s worth noting that the WRC and Labour Court will examine the conduct of both parties — not just the employer. Your behaviour before, during, and after the events in question will be scrutinised. If you acted impulsively, failed to engage with available procedures, or resigned in the heat of the moment without allowing your employer to respond, that will weigh against you, even if the underlying treatment was genuinely poor.
What You Should Do Before Resigning
If you believe your situation at work has become intolerable, take these steps before you hand in your notice: Raise a formal grievance in writing. Use your employer’s grievance procedure. Put your complaints on the record clearly and specifically.
Keep detailed records. Document incidents as they happen, dates, times, what was said, who was present. Save any relevant emails, messages, or correspondence.
Allow your employer time to respond. The process must be given a genuine opportunity to work. If your employer fails to address the grievance properly, that strengthens your position. Seek legal advice before you resign.
Once you’ve walked out, your options narrow significantly. Getting advice beforehand can be the difference between a strong claim and no claim at all.
Don’t resign in the heat of the moment. A resignation driven by frustration or emotion, without having followed the proper steps, is extremely difficult to frame as constructive dismissal.
Time Limits
You must bring a constructive dismissal claim to the Workplace Relations Commission within six months of the date of your resignation, extendable to twelve months in exceptional circumstances.
Get Legal Advice Before You Make a Decision
Constructive dismissal claims are winnable, but they require careful preparation. The strongest cases are built before the resignation happens, not after.
If you’re in a difficult workplace situation and considering your options, talk to a solicitor first.
Barry Crushell is a qualified solicitor with expertise in employment law, practising from Arran Square, Dublin 7. Contact us today to discuss your situation.
01 611 1546
