1. Introduction
Constructive dismissal is one of the more difficult routes to a successful unfair dismissal complaint. It requires the employee to terminate the employment relationship and then to demonstrate, in the WRC, that the resignation was the necessary and proportionate response to the employer’s conduct. The burden of proof rests with the employee.
This article sets out the legal framework, the two recognised tests (contract and reasonableness), the procedural requirements that a complainant must satisfy, and the practical considerations that arise both in advising an employee considering resignation and in defending a constructive dismissal claim.
2. Legislation and Case Law
Section 1 of the Unfair Dismissals Act 1977 defines “dismissal” to include the termination by the employee of his contract of employment 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.
The definition encompasses two tests. The contract test asks whether the employer’s conduct was such that the employee was entitled, at common law, to treat the contract as repudiated. This requires a fundamental breach of the contract by the employer, such as a unilateral material change to terms, persistent failure to pay wages, or conduct destroying the implied term of mutual trust and confidence.
The reasonableness test asks whether it was reasonable for the employee to terminate the contract. The leading authority is Berber v Dunnes Stores [2009] ELR 61, in which Finnegan J. articulated the modern test of mutual trust and confidence.
The procedural requirement is critical. The Labour Court in Conway v Ulster Bank Ltd (UDD2026) emphasised that, save in exceptional circumstances, an employee must invoke the employer’s grievance procedure before resigning. A resignation without prior grievance is likely to be found premature.
3. Decision
The employee must demonstrate the employer’s conduct, the engagement of the internal grievance procedure (or compelling reasons for not doing so), and the proximity in time between the precipitating conduct and the resignation. Where any of these three elements is missing or weak, the complaint is at risk.
A long delay between the precipitating conduct and the resignation may suggest that the employee did not regard the conduct as fundamental. A resignation without prior grievance may suggest that the employer was not given an opportunity to address the issue. A complaint based only on dissatisfaction or disappointment, without demonstrable conduct meeting the threshold, will not succeed.
Conversely, where the conduct is sufficiently serious (a significant unilateral pay reduction, bullying conduct that has been formally raised and not addressed, exclusion from work without explanation), and where the employee has demonstrably invoked the grievance procedure, the constructive dismissal complaint is likely to succeed.
The Adjudication Officer or Labour Court will assess the totality of the circumstances. Single events are rarely determinative; a course of conduct, documented and escalated through the grievance procedure, is the most reliable basis for a constructive dismissal claim.
4. Takeaway
Constructive dismissal claims succeed where the employee can demonstrate a fundamental breach or unreasonable conduct, engagement with the grievance procedure, and proximate resignation. The absence of any of these elements materially weakens the claim.
For employees considering resignation, the practical advice is rarely to resign in the heat of the moment. The grievance procedure should be invoked, in writing, with clear specification of the conduct complained of and the remedy sought. The employer should be given a reasonable opportunity to respond.
For employers, engagement with internal grievances is the most reliable defence against a constructive dismissal complaint. A grievance acknowledged promptly, investigated fairly, and concluded with reasoned findings will, in most cases, defeat any subsequent complaint based on the matters raised in the grievance.
Practitioners should also be alert to the time limits. A constructive dismissal complaint must be referred to the WRC within six months of the date of resignation (extendable on reasonable cause to twelve months).
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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