Constructive Dismissal

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What is Constructive Dismissal?

Constructive dismissal arises where an employee terminates their contract of employment due to the conduct of an employer or other employees of the company whose behaviour they have previously brought to the attention of management.

If an employee claims constructive dismissal under the Unfair Dismissal legislation the onus will be on the employee to prove that their resignation was justified, unlike an unfair dismissal situation where the onus is on the employer to prove the dismissal was fair.

Who is eligible for an Unfair Dismissal claim?

In order to qualify to submit a claim for Unfair Dismissal the following conditions must be met:

1. At least 1 years service (an exception to this rule includes unfair dismissal due to trade union activity, pregnancy or availing of rights in relation to maternity, parental leave, wages or carers legislation).
2. Employed under a contract of service
3. Utilised all available grievance procedures (complaint systems) prior to resignation

Important points

Issues you should be aware of before submitting a constructive dismissal:

1. It is up to the employee to prove the resignation was justified
2. A grievance procedure should be utilised prior to resignation
3. Industrial relations procedures should be utilised prior to resignation
4. Seek advice before resigning as it is a complex legal area
5. Resignation should only be utilised as a last resort, when all other avenues for resolving the issue have been exhausted.

Remedies available:

If an individual is successful in establishing a claim for Unfair Dismissal, then the following remedies are available before The Employment Appeals Tribunal:

1. Reinstatement: This involves being reinstated to your position as if you had never been dismissed. You are entitled to all Lost Earnings from the date of the dismissal to the date of the hearing and also entitled to any favourable changes in the interim period, such as pay rises.
2. Re-engagement: This involves being restored to your prior position but only from a particular date, for example from the date of the decision in your favour. You are not entitled to compensation for lost earnings.
3. Compensation: This is the most common remedy. The Employment Appeals Tribunal are entitled to award compensation up to a maximum of two years lost remuneration and will reference their awards to earnings which have been lost during the period spent attempting to secure alternative employment. In that regard it is important that an applicant has documentation to evidence continual attempts to secure employment as there is also a duty at law to mitigate or reduce the loss of earnings claim by obtaining or endeavouring to obtain alternative employment.

Time Limit- Statute of Limitations

The time limit imposed for submitting a claim in relation to Constructive Dismissal is 6 months; however it may be extended to 12 months if "reasonable cause" for the delay can be shown.

Seeking Employment Law Advice

If you would like to set up a consultation with an Employment Law Solicitor please contact Malcomson Law by calling 01 8744422.