Constructive dismissal in Ireland is the one claim under the Unfair Dismissals Acts 1977-2015 where the employee carries the burden of proof. You resigned, so you must show that the employer’s conduct left you no reasonable choice, and the Workplace Relations Commission will ask one question before any other: did you use the grievance procedure first? That makes it a claim decided almost entirely on what you did, and what you kept, in the weeks before you wrote the letter.
Constructive Dismissal in Ireland: Section 1 and the Two Tests
Section 1 of the Acts defines dismissal to include the termination of the contract by the employee, with or without notice, where, because of the conduct of the employer, the employee was entitled to terminate it without notice or it was reasonable for the employee to do so. Two tests come out of that definition, and a claim succeeds under either. The contract test asks whether the employer committed a repudiatory breach: a breach going to the root of the contract, such as unpaid salary, a unilateral cut in pay or a demotion imposed without consent, so serious that the employee was entitled to treat the contract as at an end. The reasonableness test is wider: whether the employer’s conduct was so unreasonable that the employee could not be expected to stay, even if no single term of the contract was broken. Most claims run on the reasonableness test, because the conduct complained of is usually a pattern, and a pattern has to be proved.
Why Constructive Dismissal Claims Are Harder
In an ordinary unfair dismissal claim, section 6(1) deems the dismissal unfair and the employer must prove substantial grounds justifying it. In a constructive dismissal claim the first thing in dispute is whether there was a dismissal at all, and that is for the employee to prove: that the conduct met one of the two tests, that the resignation was caused by it, and that resigning was a reasonable response rather than a choice. Only once that hurdle is cleared does the employer have to justify anything. So the WRC looks hard at the alternatives the employee had and did not take. An employee who resigned without raising the problem, or who left before the employer could answer, is usually met with the finding that the resignation was premature. The claims that succeed are the ones where the employee can show, document by document, that they did everything the employer’s own procedures asked of them before leaving. Our page on unfair dismissal claims explains how the burden works when the employer did the dismissing.
The Grievance-First Rule
The WRC expects the internal grievance procedure to have been exhausted before an employee resigns and claims. The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) requires employers to have a grievance procedure, and almost every contract or handbook contains one: a written complaint, a meeting, a decision and an appeal. An employer that was never told cannot be blamed for not fixing the problem, and an employee who did not wait for the answer cannot show that the answer would have been inadequate. Exhausting the procedure means putting the complaint in writing, attending the meeting, appealing an unsatisfactory outcome and giving each stage the time the procedure allows. Where the procedure cannot sensibly be used — the only person to complain to is the person complained of, or the employer has made clear it will not engage — that is an exception the employee must prove, not a reason to skip the step. The guide to the constructive dismissal checklist before you resign walks through the sequence.
Forced to Resign: The Conduct That Grounds a Claim
The conduct behind a constructive dismissal claim usually falls into a few recognisable patterns. A unilateral change to the fundamental terms — pay, hours, location, role — imposed without consent is the classic repudiatory breach, and our page on performance plans, demotion and pay cuts covers how to respond while still employed. Bullying that the employer was told about and failed to address runs under the reasonableness test; the guide to being forced to resign because of bullying deals with it. A disciplinary process run as a pretext, a suspension that drags on without explanation, or an exit offer made during performance management can each support a claim. Ireland has no equivalent of the UK protected conversation: without prejudice privilege attaches only where a dispute already exists, so an offer to leave made in the middle of a performance plan is evidence of what the employer actually wanted, as the guide to without prejudice exit conversations explains. Dissatisfaction is not enough: a disappointing appraisal, handled through the proper procedure, is not conduct that entitles you to leave.
The Resignation Letter
The resignation letter is read at the WRC as the employee’s own account of why they left, written at the time, and it is held against anything said later. Three things belong in it. First, the reason: that you are resigning because of the employer’s conduct, identified specifically, with reference to the grievance you raised and the response you received. Second, the characterisation: that you regard yourself as having been constructively dismissed and reserve your position. Third, the date on which the resignation takes effect. What does not belong in it is anything that undermines the claim — thanks for the opportunity, a statement that you are leaving for a new role, or an apology. Take advice before sending it, not after, because it cannot be rewritten.
Evidence: The Documents That Decide It
Because the burden is on the employee, the claim is only as good as the record. The documents that decide it are:
- the contract and the handbook, which define the terms breached and the grievance procedure that had to be used;
- the grievance, every reply, the appeal and its outcome, which show the employer was told and how it responded;
- contemporaneous notes or emails recording what was said and when;
- the resignation letter;
- after the resignation, the record of the job search, because mitigation is measured from the day the employment ended.
Where the conduct was a pattern, a dated timeline tying each incident to a document is the single most useful thing an employee can prepare. Where the employer refused to engage, the letters showing that refusal are the case.
Service, Time Limit and Redress
A constructive dismissal claim is a claim under the Unfair Dismissals Acts, so the ordinary rules apply. One year’s continuous service is required under section 2(1)(a), subject to the section 6(2A) exceptions for pregnancy and family leave, trade union membership or activity, a protected disclosure and rights under the National Minimum Wage Act. The complaint must be lodged with the WRC within six months of the date of dismissal, extendable to twelve months only where reasonable cause prevented an earlier complaint (section 8(2)); for a resignation, count from the day the employment ended and lodge well inside the six months. 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, with nothing for stress or injury to feelings and a duty to mitigate by seeking work. The Dismissal Claim Route Finder confirms which route your facts fit; inside the first year, the Employment Equality Acts 1998-2015 or a breach of contract and notice claim may be the route instead.
What a Constructive Dismissal Solicitor Does
The firm acts mainly for employees who are considering resignation or have already resigned, and also defends constructive dismissal claims for employers, never both sides of the same dispute. For an employee still in the job, the work is to get the grievance into the right form, keep the record, and decide whether and when to resign. For an employee who has resigned, it is the complaint through the WRC eComplaint portal, the written submission due 15 working days before the hearing, and the public hearing itself. The WRC offers free, voluntary and confidential mediation first, and Richard O’Shea is a Law Society accredited mediator; most claims settle, and a well-prepared file settles earlier. The WRC does not award legal costs, so each side pays its own whatever the result. The initial consultation is a fixed fee set out on our fees page.
Thinking of Resigning? Take Advice First
Bring the contract, the handbook, the grievance correspondence and a timeline. One consultation establishes whether the conduct meets either test, what still has to be done before you leave, and the deadline that follows.
Call 01 5827148