Constructive Dismissal- before you resign

Constructive Dismissal

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

Constructive Dismissal – Employees must Exhaust Internal Procedures

A recent case in the WRC has highlighted the importance of Employees following internal grievance procedures prior to handing in their notice.

Before handing in Notice

An Employee who claims constructive dismissal without taking the relevant steps to deal with the issues within the Company will be very unlikely to succeed in the WRC. The logic behind this is that Employers need to be given a reasonable chance to rectify any issues that arise either between Employees or between Employees and Management.

A Recent Case

In the case of An Employee v A Large Retailer (ADJ00014541), the Complainant made a claim for constructive dismissal under Section 8 of the Unfair Dismissals Act, 1977. She was a long term Employee of the Respondent Company and had recently returned from maternity leave. On return she had negotiated a change to her working arrangements with the Human Resources Manager to accommodate her increased childcare obligations. Shortly thereafter a new Human Resources Manager took over and refused to comply with the agreement reached with the previous Manager and insisted that the Complainant work hours which she felt were no longer suitable for her.

In the WRC the Adjudicator found that the Company had made reasonable and appropriate measure to accommodate her ‘with an arrangement that would go some way towards meeting her preferences, while at the same time meeting the obvious requirements of the businesses’. So while the new Manager could not allow the temporary agreement to continue, he had offered her alternatives which she was not willing to consider. It was further noted that the fact that the employer ‘sought to place her on the exact same contractual terms she had prior to her leave’ was the correct approach.

Finally, the Adjudicator noted that the Complainant had failed to comply with the requirement to exhaust all internal measure before deciding to terminate her employment. For this reason it cannot be said that she had no option but to terminate her employment and therefore the claim for constructive dismissal was not well founded.

Key Point

It is very important that Employees do not hand in their notice prior to exhausting internal grievance procedures. Regardless of the Employers behaviour it will be unlikely that a claim for constructive dismissal will succeed where an Employee hasn’t made an effort to solve the matter at a local level.