Constructive Dismissal is where the employee leaves his or her role as the employer has made it untenable for him or her to continue working.
There is a high threshold for an employee to prove their case. The employee must first have put the employer on notice of his or her dissatisfaction by way of the grievance procedure, in writing. He or she must then await the outcome of any investigation. If the situation remains intolerable, he or she can resign their role and make a claim under Section 2 of the Unfair Dismissals Act. It would be unwise of any employee to resign their role in such circumstances without first taking legal advice.
To prove their case, the employee must show:
- That his or her trust and confidence in his employer was undermined to the extent that he or she could not continue in their employ
- That the employer was on notice of the issue and that all internal grievance and bullying policies were exhausted, including appeals
- That the employer had failed to remedy the situation
- And that the employee had twelve months service prior to resigning.
If the employee can satisfy the burden of proof in the WRC, or she he may be entitled to up to 2 years remuneration in compensation, after demonstrating that he or she made all efforts to seek an equally lucrative role.
Employers can protect themselves from constructive dismissal claims by ensuring that they have comprehensive grievance and bullying policies, by ensuring a culture of openness and fairness, and by actively investigating and tackling any grievances that arise. It is important for employees to be encouraged to air their grievances rather than to be treated as trouble-makers for doing so.
This article is for information purposes only, and is not intended to be relied upon as legal advice. Fitzsimons Redmond will be happy to tailor advice to suit the needs of your organisation. You can contact us on 01 6763257.
By Lisa Quinn O’Flaherty
Solicitor at Fitzsimons Redmond