A query we receive from our private clients experiencing difficulties with their employers and our corporate clients seeking guidance, relates to the distinction between Unfair Dismissal and Constructive Dismissal.

Below is a brief overview of the key differences.

What constitutes an Unfair Dismissal?

To bring a claim for Unfair Dismissal before the Workplace Relations Commission (WRC), an employee must have at least twelve months’ continuous service and be over sixteen years of age.

There must be objectively justifiable grounds for any dismissal. Where such justification is lacking, the dismissal may be deemed unfair. A dismissal will be considered automatically unfair if it arises from an employee’s

• race, colour, sexual orientation, age, or membership of the Traveller Community;
• pregnancy, giving birth or breastfeeding or any matters connected with pregnancy or birth;
• unfair selection for redundancy or
• religious or political opinions.

*The above list is not exhaustive

Certain categories of workers are not eligible to bring unfair dismissal claims, including members of An Garda Síochána, the Defence Forces, and individuals engaged in full-time training or apprenticeships.

In dismissing an employee fair procedure must be followed at all times in order to avoid a WRC claim.

If an employee of yours is taking a claim against you to the WRC or you wish to launch a claim for unfair dismissal in the WRC please get in contact with Ursula Cullen for assistance.

What constitutes a Constructive Dismissal?

Constructive Dismissal arises where a working environment becomes so unbearable that the employee has no other alternative but to “dismiss” themselves or resign from their employment due to intolerable working conditions.

For an employer to be guilty of constructive dismissal the employer must have created a situation where continued employment was unattainable through a fundamental breach of contract or unreasonable behaviour. The employee then resigns as a direct result of the employer’s actions.

It is imperative that an employee who is suing for constructive dismissal follows all internal procedures before resigning their position. A company should have grievance procedures in line to deal with this. It is prudent to give your employer an opportunity to discuss the issues and try to resolve it before resigning.  Otherwise, constructive dismissal claims can be a difficult hurdle to overcome if internal processes have not been followed by an employee.

Some examples of constructive dismissal are as follows:

• A serious breach of the contract of employment;
• Allowing colleagues to bully or harass an employee at work where such behaviour goes unchecked by an employer;
• Forcing an employee to accept unreasonable changes to conditions of employment without agreement;
• False accusations against you/misconduct or fraud.

Like unfair dismissal you must also have twelve months continuous service with your employer to bring a claim for constructive dismissal.

If an employee of yours is taking a claim against you to the WRC or you wish to launch a claim in the WRC for constructive dismissal, please get in contact with Ursula Cullen for assistance.