Before You Resign: The Constructive Dismissal Checklist

A constructive dismissal claim is decided largely by what the employee did before resigning. The burden of proof is on the employee, the WRC expects the internal grievance procedure to have been exhausted first, and the resignation letter is read at the hearing as the employee’s own account of why the employment ended. This constructive dismissal checklist sets out the sequence under section 1 of the Unfair Dismissals Acts 1977-2015: the two tests, the grievance, the evidence, the letter, the timing and the deadlines that follow.

1. What Constructive Dismissal Means in Section 1

Section 1 of the Acts defines dismissal to include the termination by the employee of the contract of employment, with or without notice, where because of the conduct of the employer the employee was entitled to terminate it, or it was reasonable for the employee to do so. The employee resigns, but the law treats the resignation as a dismissal, and everything else in the Acts then applies: the one-year service requirement in section 2(1)(a), the six-month time limit in section 8(2), and the three forms of redress in section 7. The practice page on constructive dismissal explains how a claim is run; this guide is about the steps before the resignation that make it possible to run one at all.

2. The Two Tests: Contract and Reasonableness

The section 1 definition contains two routes, and the employee must satisfy one of them:

• The contract test. The employer committed a repudiatory breach, a breach going to the root of the contract, and the employee resigned in response to it. A pay cut or a demotion imposed without consent is the clearest example, and is covered in demotion or pay cut without consent.
• The reasonableness test. The employer’s conduct, taken as a whole, was so unreasonable that the employee could not be expected to stay. Bullying that the employer failed to deal with is the typical case, and is covered in forced to resign because of bullying.

The two tests are argued together where the facts allow. What they share is that the conduct must be the employer’s, must have been put to the employer, and must be the actual reason for the resignation.

3. The Burden Is on You

In an ordinary dismissal, section 6(1) deems the dismissal unfair unless the employer shows substantial grounds justifying it. In a constructive dismissal the first step is reversed: the employee has to prove that there was a dismissal at all, which means proving the breach or the unreasonable conduct and proving that the resignation was caused by it. Only then does the question of fairness arise. That reversal is the reason the preparation below matters. An employee with a strong grievance but no record of it is asking the WRC to take their word against the employer’s, and the burden means a draw goes to the employer.

4. Step One: Exhaust the Grievance Procedure

The WRC expects the employee to have used the employer’s internal grievance procedure before resigning. The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) sets the standard for such procedures, and most handbooks follow it: a written complaint, a meeting, a decision, and an appeal. The grievance does three jobs. It gives the employer the chance to fix the problem, which is why the WRC insists on it. It creates a dated record of the conduct complained of, written before anyone was thinking about litigation. And the employer’s response, or its silence, becomes evidence of how reasonable the employer was. Write the grievance to be read later: name the conduct, give dates, say what effect it has had, and say what you want done. Follow every stage the handbook provides, including the appeal. An employee who skips the procedure has to persuade the WRC that it would have been futile, and that is a hard argument to win against an employer that can point to a procedure it was never asked to use.

5. Step Two: Build the Evidence

The evidence that proves a constructive dismissal is almost all created before the resignation. Keep:

• Dated notes. A contemporaneous record of each incident: date, time, place, who said or did what, who was present. Written on the day, in your own words, kept somewhere the employer cannot reach.
• Emails and messages. The ones that record the conduct, your objections and the employer’s replies. Send copies to a personal address as you go, but take nothing that is confidential to the business.
• The grievance file. The grievance, the acknowledgement, the meeting notes, the outcome, the appeal and the appeal outcome. If no outcome was ever given, the dated reminders you sent asking for one.
• Medical certificates, if any. Where you were certified unfit because of what was happening at work, the certificates and their dates form part of the timeline.
• The contract, handbook and payslips. The terms the employer promised, the procedure it published, and the figures that will measure financial loss.
• Any exit offer. Ireland has no protected conversation, and an offer to leave made during a performance process or a grievance can itself support a constructive dismissal claim. Ask for it in writing and keep it.

6. Step Three: The Resignation Letter

The resignation letter is the document the adjudication officer reads first, because it is the employee’s contemporaneous statement of why the employment ended. It should state the conduct relied on, briefly and by date; record the grievance raised about it and what happened to it; say that the conduct has left you with no choice but to resign; and say that you regard the employer’s conduct as a breach of your contract. It should not contain abuse, speculation about motives, or allegations that were never put in the grievance, because a letter that raises new complaints at the moment of leaving reads as an afterthought and the omission of them from the grievance will be put to you. It should be short. Send it by a method that records the date, keep a copy, and expect every line of it to be read aloud at a hearing that is held in public and reported with the parties named.

7. Timing: Resigning Too Early and Too Late

Too early is the common error. Resigning before the grievance has been raised, or while it is still being decided, hands the employer the argument that it was never given the chance to put things right. The same applies to resigning in the heat of a single incident; the reasonableness test looks at the employer’s conduct as a whole, and a single confrontation rarely carries a claim on its own. Too late is the quieter error. Where the complaint is a change to pay, hours or duties, working on for a long period without protest can be read as acceptance of the new terms, which defeats the contract test. If you must keep working while the grievance runs, say so in writing and say that you are working under protest. Finally, check your service. A constructive dismissal needs one year’s continuous service under section 2(1)(a) unless a section 6(2A) ground applies, and an employee who resigns at eleven months has resigned out of the Acts.

8. After Resignation: Deadlines, Redress and Mitigation

The WRC complaint must be lodged within six months of the date of dismissal under section 8(2), extendable to twelve months only where reasonable cause prevented an earlier complaint. Where you resign with notice, section 1 fixes the date of dismissal as the date the notice expires. Redress under section 7 is reinstatement, re-engagement or compensation for financial loss attributable to the dismissal, up to 104 weeks’ remuneration, or up to four weeks’ remuneration where there is no financial loss. There is no compensation for stress or injury to feelings, and the employee must mitigate by seeking work from the date of resignation and must prove it. Because the resignation is the employee’s own act, the question of which claim fits, and whether a different route under the Employment Equality Acts or the Protected Disclosures Act applies instead, should be answered before the letter is sent; the Dismissal Claim Route Finder is built for that question. Employers who receive a resignation letter that reads like a claim get the same analysis from the other side: whether the grievance was handled as the Code requires, and what the record shows. We never act for both sides of the same dispute.