knowledge | 30 May 2019 |

Recent Trends in Constructive Dismissal Cases

Constructive dismissal, as is well-known, arises where an employee terminates their employment because the conduct of the employer is so unbearable that the employee cannot be expected to tolerate it and has no option but to resign. The burden of proof in such actions is a heavy one and rests with the employee. As such, constructive dismissal claims often fail because the employee cannot reach the high threshold of proving both the unreasonableness of their employer’s conduct and that their consequent resignation was reasonable. However, a number of successful claims of constructive dismissal have been reported in recent months and should be noted by employers.

Exhausting internal avenues

As a matter of general principle, an employee will not normally be considered to have acted reasonably where they take the nuclear step of resigning without first having utilised the employer’s internal procedures, including any grievance procedure, to remedy their complaint and provide an employer with an opportunity to resolve matters. However, this is not a universal rule and there have been instances where failure to raise a grievance has not proven fatal, such as where an employer does not have a grievance procedure, where the employee was sufficiently senior in the organisation or where the employer’s conduct is especially egregious.

This usual prerequisite was dispensed with in the recent decision of the WRC in An Accountant –v-  Accountancy Firm (ADJ-00017674), in which the Complainant had a serious altercation with her employer while she was seven months pregnant, causing her significant distress and fear as her pregnancy was high-risk. In these circumstances, the Adjudicator held that it was reasonable for the Complainant, who feared for her safety, to terminate her contract. However, this case is unlikely to elicit any significant change to the orthodox requirements given its unusual facts. The Complainant had taken a period of stress leave after the altercation until she gave birth, during which time she received no contact from her employer and noticed her job was being advertised some two months after she had given birth. While the Complainant refused an offer from her employer to mediate her concerns, this offer had come some two months after she tendered her resignation.

Similarly, a claim of constructive dismissal was upheld in the recent decision of A Dental Nurse –v- A Dental Practice (ADJ-00015099) despite the Complainant’s failure to invoke a formal grievance. The Complainant contended that she was regularly the subject of verbal abuse by her director and that she was unable to articulate her grievances in a meeting arranged to discuss her issues because her director was present. The Adjudicator noted that the Complainant’s resignation email indicated a willingness to resolve her issues, but despite this opportunity to maintain the relationship, her employer failed to respond. Furthermore, the employer was present at the hearing but failed to comment or offer any evidence in relation to the Complainant’s evidence.

Employer conduct

To sustain a claim of constructive dismissal, an employee must prove that their employer’s conduct was so unreasonable that they cannot be expected to put up with it, and its effect on the employee is judged by an objective standard. Recently, the WRC held in A Care Worker v A Care Provider (ADJ-00011215) that a delay in an employer’s investigatory procedures (and the consequent exclusion of the Complainant from the workplace) can amount to a repudiation of the Complainant’s contract of employment and ground a claim of constructive dismissal.

This high threshold was recently met again in A Solicitor –v- A Solicitor’s Firm (ADJ-00011116) in which the conduct of the employer was considered “destructive of a relationship of mutual trust and confidence”. In that case, the employer failed to address claims of inappropriate behaviour raised by the Complainant. The Complainant took a period of sick leave following which the locks to her office were changed and her files removed from her office. The Complainant had not been paid while on sick leave despite other employees having been paid. In these circumstances, and in the absence of any compelling explanation from the employer as to why mediation or external investigation was not proposed, the claim of constructive dismissal was upheld.

In Financial Controller –v- A Risk Management and Advisory Company (ADJ-00014388), the Complainant was advised that her job title was being changed in a manner which she considered a dilution of her role and with fewer responsibilities. She indicated to her employer that she had not been consulted in relation to these changes. While it may have been pre-emptive for the Complainant to resign prior to receiving her job description, the actions of the employer were such that she was justified in resigning.

Concluding remarks

While there has recently been a marked spike in the incidence of successful constructive dismissal claims, the majority of such claims continue to fail. Where such claims have succeeded, complainants have been awarded compensation rather than reinstatement or reengagement. The Labour Court recently reaffirmed in Ryan, Cannon and Kirk Accounting Services Limited –v- Violeta Kneite (UDD1910) that an employee must make reasonable efforts to address their grievances before resigning and on that basis, the Complainant had not made out that her resignation was reasonable. As commented by the WRC in A Child Care Worker –v- A Community Centre (ADJ-00013869), an employee may be “very poorly treated” by her employer without such treatment reaching the levels of  constructive dismissal. As such, the threshold for a successful claim remains high and the recent increase of successful cases can likely be attributed to the unique facts of individual cases rather than any relaxation of established legal principles.

Also contributed by: David McCauley

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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