All you need to know about constructive dismissal

Constructive dismissal is where you end your contract of employment because of the actions of your employer. Employees who can prove constructive dismissal can be returned to their jobs under their original contracts, but more often receive compensation for earnings lost due to their dismissal. Constructive dismissal is complex and should only ever be considered as a last resort when you feel your employer is not going to honour the terms of your contract.

How is constructive dismissal different from other forms of dismissal?

Usually in a dismissal, the employer informs their employee that they are being let go and gives a reason for that. There is a significant burden of proof on employers in firing people in Ireland: they have to clearly show that they are justified in ending someone’s contract of employment. Dismissals can be either fair or unfair, and are automatically considered unfair unless the employer can prove otherwise.

A constructive dismissal is different. This is where an employee terminates their own contract because they believe their employer is behaving very badly or not honouring the actual terms of the contract. In constructive dismissal cases, it’s up to the employee to prove that the constructive dismissal is justified. This is difficult and, unlike in normal dismissals, gives the benefit of the doubt to the employer. This is why constructive dismissal should never be considered lightly, unless you’re absolutely sure you can prove it’s the right thing to do.

When can I claim constructive dismissal?

In most cases you will need to be working somewhere continuously for at least 12 months before you can make a case for constructive dismissal, though not always. In order to successfully claim constructive dismissal, you will have to find yourself in a situation where you can reasonably say your job (as described in your contract) has already been terminated. This can be for a number of reasons:

• Your employer may be breaching the terms of your contract
• Your employer has indicated through their actions that they don’t intend to keep honouring your contract
• Your employer has acted unreasonably in a way serious enough to justify your resignation.

Although it’s not a requirement, you should very strongly consider going through all the available complaints, grievance and industrial relations procedures before making the decision to seek constructive dismissal. Your case will be much stronger if you can prove you tried to make things work by bringing up the problems as they happened.

How can I claim constructive dismissal?

Claims should be made within six months of you leaving your job, though this can be extended to 12 in some cases. Before you claim constructive dismissal you should always make sure to get solid professional advice. This can be from a trade union, an employment lawyer, or a group like the Workplace Relations Commission. This is a much more complex area of law than other dismissals so you’ll want to have the best possible advice before going through with it.

If you feel you have a case for constructive dismissal, you can fill out a complaint form on the Workplace Relations Commission website. Serious complaints will go before an adjudication officer who will judge whether you are entitled to constructive dismissal. If you’re unhappy with the adjudication officer’s decision you can appeal to the Labour Court for a higher opinion. 

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