Constructive Dismissal v Resignation

Are all Resignations Constructive Dismissals?

The Unfair Dismissals Act envisages two situations whereby a termination of the employment relationship can occur. In the first situation, the employer ends the employment relationship. In general, an employer will be required to prove that the ending of the employment relationship was fair and reasonable which will usually result in them citing conduct, competence, capability or redundancy. The employment relationship can also be ended by the employee. This is normally effected by the employee handing in their notice. However, is there a legal difference between a resignation and constructive dismissal? 

What is 'Constructive Dismissal'?

Constructive dismissal arises whereby, owing to a breach in the contract of employment or the unreasonable behaviour of the employer, the employee feels they have no other option but to resign. Simply put, in the eyes of the law, the decision by the employee to terminate the employment relationship was not one freely taken as the circumstances compelled them to take this drastic decision.

However, this is in contrast to a resignation, whereby the employee ends the employment relationship of their own free will, without any extenuating circumstances leading to that decision.

Irish Employment Law - Constructive Dismissal v Resignation

A case recently came before the Workplace Relations Commission (An Employee v An Employer (ADJ00019299) ) wherein an employee resigned and then later claimed he was constructively dismissed. He brought a claim of unfair dismissal by way of constructive dismissal, noting, at the adjudication, that he had raised certain issues with his employer in advance of that resignation.

However, it was noted that the issues raised were dealt with in an informal manner, the employee concerned was afforded the opportunity to raise a formal grievance which he declined.

Furthermore, when tendering his resignation letter, he made no reference to any extenuating or difficult circumstances compelling him to make this decision.

In addition, he remained in the employment of the company serving his notice period.

In these circumstances, the Adjudication Officer deemed that the working conditions were not so intolerable that the employee had no other option but to resign. 

Burden of Proof for a Constructive Dismissal Claim

There is a difference between a resignation and constructive dismissal. This is well established in law. The complainant’s situation was an example of the former.

There is a “high bar” for employees in constructive dismissal cases - Katrina Burns v ACM Community Development Society Ltd – UD2166/2011.

There is abundant case law on the need to exhaust internal processes before taking the final step of resignation. To ground a claim for constructive dismissal the employer’s behaviour should be “so intolerable that it justifies the claimant’s resignation and constitutes something that represents a repudiation of the contract of employment. A contract of employment is like any contract in that a party to it may not simply walk away from it for no reason” – see A Care Worker v A Health Service Provider (2017) ADJ-00005216.

As pointed out in Dr Mary Redmond’s well known employment law text book, Dismissal Law in Ireland, Dr Redmond has stated that there is “something of a mirror image between constructive dismissal and ordinary dismissal….Just as an employer, for reasons of fairness and justice, must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve the grievance. Dr. Redmond concludes that it is “imperative” that an employee do so before resigning.

The Supreme Court has held that the conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be  expected to put up with it.’ – decision of Finnegan J in Berber v Dunnes Stores   [2009] E.L.R. 61.

Drafting a Resignation Letter for a Constructive Dismissal Claim

When an employee resigns in the normal manner, tendering a resignation letter that makes no reference to any extenuating circumstances, and serves their notice period, it will be very difficult for them to later bring a claim of unfair dismissal by way of constructive dismissal. An Adjudication Officer, in order to find for an employee claiming constructive dismissal, will need to see evidence that, at the time of resigning, the employee had no other option but to end the employment relationship as a consequence of their breach of the contract of employment or the unreasonable behaviour of the employer.

Before resigning, we always advise employees to seek legal advice to ensure that the manner in which that resignation takes place, is in accordance with the accepted standards for a subsequent claim of unfair dismissal by way of constructive dismissal, if such a resignation is prompted by the behaviour of the employer.

Further Information

For further information, please contact the author of this article, Barry Crushell.