Constructive dismissal in Ireland is covered by the Unfair Dismissals Act, as it provides that a dismissal is, among other definitions, “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”
It is one of the most common employment claims taken by employees against former employers. Essentially where an employee terminates his employment as a result of his employer’s conduct he may be able to successfully bring a case for constructive dismissal.
It is vitally important to note that in a constructive dismissal case the onus of proof is on the employee as he/she needs to prove that his/her resignation was justified. This can be contrasted with a case of unfair dismissal where the employer must prove that the dismissal was fair and justified.
Examples of potential constructive dismissal cases
Some examples of circumstances giving rise to a claim for constructive dismissal are set out below. However it is vitally important to understand that in all legal cases, the particular circumstances of the case will be a huge factor in success or failure and the examples below are not definitive or exhaustive.
*A unilateral reduction in pay - This may give rise to a case for a successful constructive dismissal case as it may be a material breach of a fundamental clause in the contract of employment.
*A change in job function - A unilateral change in the functions of your job may give rise to a successful constructive dismissal claim.
*Adverse working environment
*Change of work location - Where the contract of employment does not make provision for a change of work location it can give rise to a claim.
*Undeserved warnings
*Sexual harassment in the workplace
*Abuse in the workplace
*Change in work hours
*Conduct of fellow employees.
All of the examples above have given rise to successful claims for constructive dismissal on one occasion or another; however this does not mean that these situations will automatically lead to a successful claim.
Remedies for constructive dismissal
Possible remedies for unfair or constructive dismissal which the EAT (Employment Appeals Tribunal) can order include:
1. Reinstatement in the job
2. Re-engagement
3. Compensation.
To bring a case under the Unfair Dismissals Act, 1977 you will need to have at least one year’s continuous service with the employer and have exhausted all internal grievance procedures of the company. You must also bring your claim within 6 months of the date of termination of your employment (12 months in exceptional circumstances) and can bring it to a Rights Commissioner who will make a recommendation or you can bring your complaint directly to the Employment Appeals Tribunal who will issue a determination.
This determination of the EAT can be appealed to the Circuit Court by either you or the employer.
Unfair dismissal in Ireland is governed by the Unfair Dismissals Acts 1977-2007 and two points/fundamental principles need to be made clear about this legislation at the outset-
1. an employer must have substantial grounds for dismissing an employee
2. in doing so the employer must apply fair procedures to the process.
The Unfair Dismissals Act covers people who have been in employment for at least 52 weeks continuous service and who have not reached the normal retirement age for the employment in question.
However employees in the following categories do not have to show 52 weeks continuous service:
 *employees who have been dismissed for trade union membership, pregnancy, maternity, ante-natal, post natal related matters, employees dismissed for exercising rights to parental leave or carer’s leave.
Employees who are not covered by the legislation include FAS trainees, members of the Defence Forces, Gardai and civil servants.
It may seem blindingly obvious but only employees may use the legislation in respect of a termination of employment-sub contractors for example would not be covered.
Fixed Term and Specified Purpose Contracts
Unfair dismissal legislation does not apply to fixed term and specified purpose contracts provided
1. The contract was in writing
2. The contract specifically excluded the legislation
3. The contract was signed by both parties.
Many employers use fixed term and specific purpose contracts in the belief that they are under no obligation to renew once the term has expired.
However, non-renewal can amount to  a dismissal.
The employer must be able to show that it was a genuine fixed term contract in the first place and that there was a commercial justification for it.
Employees’ Remedies for Unfair Dismissal
An employee who has been dismissed has two avenues of remedy open:
1. A claim to a Rights Commissioner or Employment Appeals Tribunal within 6 months (12 months in exceptional circumstances) or
2. The Courts where he/she can bring an action for breach of contract or breach of constitutional rights. Because the cause of action  is a breach of contract the time limit is six years.
To bring a claim for unfair dismissal under the Unfair Dismissal Acts 1977-2007 the employee must show:
1. He was dismissed
2. He had a contract (oral or written)
3. He had 1 year’s continuous service
4. He must be over 16 years of age.
Constructive Dismissal
An employee may succeed in a claim for constructive dismissal in circumstances where the employee resigns the employment as a result of the employer’s conduct towards the employee.
Circumstances giving rise to this situation include a reduction in pay, a deterioration in the working environment, change of job roles, unwarranted warnings, change of location of the job and many others.
Not all of these situations will always give rise to a successful claim for constructive dismissal but these are the kinds of things that employers must be very careful about if they don’t want to end up in the Employment Appeals Tribunal.
However employees on probation up to a period of one year are excluded from the protection of the legislation.
Unfair Dismissals
Once a dismissal has taken place the burden is on the employer to show that it was not an unfair dismissal.
There are a number of categories of dismissals which the Unfair Dismissals Act 1977 and 1993 deem to be automatically unfair. They are on the grounds of:
1. trade union membership
2. the color, race or sexual orientation of the employee
3. the employee’s religious or political opinions
4. where the employee is involved in legal action against the employer
5. the employee’s age
6. the fact that the employee is a member of the traveling community
7. the employee becoming pregnant
8. the employee taking part in industrial action.
These are the main grounds which the legislation deems to give rise to an unfair dismissal claim and are deemed by the law to be automatically unfair. In addition if you can show that you qualify to bring a claim under the Unfair Dismissals legislation and your employer accepts that there was a dismissal, it will be for your employer to show that there were fair grounds for the dismissal as the burden of proof shifts from you to the employer.
Fair Dismissals
There are a number of limited grounds on which a dismissal can be justified by the employer as fair dismissals. They are on the grounds of:
*competence, capability or qualification
*redundancy
*misconduct
*fixed term contracts or specific purpose contracts coming to a natural end
*other substantial grounds.
Redundancy Defence
The employer has a defence in the form of redundancy but he must be able to show that the employee has been fairly selected for redundancy. However if the employer seeks to employ the redundancy defence he can expect that if an unfair claim is made against him he will find that his redundancy defence is put under a fair degree of scrutiny.
For example, it is not enough that the employer can show that his workforce numbers requirement is expected to decline some time in the future-he must be able to show that is requirements will lower in the very near future to the redundancy that he has just carried out.
Fair Procedure
The Employment Appeals Tribunal is very strong on fair procedure in relation to the termination of an employee’s job; they have held many times in the past that if they find that fair procedure was not followed then they will deem the dismissal to be unfair, regardless of the circumstances.
Adopting and implementing this Code of Practice on Grievances and Disciplinary procedures, while not mandatory, is an important factor in the employer successfully defending a claim of unfair dismissal.
1. The procedure is fair and rational
2. The basis for the disciplinary procedure is clear ie the employee knows what he has done wrong
3.The penalties are clear
4.An internal appeals mechanism is in place.
The range of disciplinary sanctions provided for include an oral warning, a written warning, suspension with/without pay, transfer etc.
Generally the employer is required to set out the employee’s shortcomings, point out the required improvements, and give sufficient time to make the improvements.
The acid test tends to be what would a reasonable employer do and this will depend on the particular circumstances as the conduct may be of such serious nature as to warrant immediate dismissal. These circumstances are limited though an d the employer should take legal advice before dismissing without notice.
Remedies for unfair dismissal
The employee can bring a case for unfair dismissal under the Unfair Dismissals Acts 1977-2007 to a Rights Commissioner or the Employment Appeals Tribunal within 6 months.
The awards against the employer can include:
*reinstatement
*re-engagement
*compensation from a minimum of four weeks remuneration up to a maximum of 2 years remuneration.
Remuneration in this context includes salary, bonuses, benefits.
The Rights Commissioner and Employment Appeals Tribunal will consider what the employee has done to mitigate his loss and whether he has been able to find work since the dismissal.
Assessment of Loss
While the EAT can award up to 104 weeks compensation, the employee has a duty to mitigate his/her loss be seeking alternative employment. The employee’s loss is financial loss (not injury to feelings etc.) up to a maximum of 104 weeks but this was amended by section 6 of the Unfair Dismissals (Amendment) Act 1993 which has the following effect:
1. if an employee has a nil financial loss (eg he immediately gets employment or is unfit to work due to sickness) the maximum he can be awarded is 4 weeks’ remuneration.
2. social welfare benefits should not be regarded in calculating financial loss.
The EAT can also reduce the award for any contributory conduct by the employee.
Please note the WRC (Workplace Relations Commission) replaced the Employment Appeals Tribunal from 2015 but the law concerning unfair dismissal has not changed and he principal act is the Unfair Dismissals Act 1977.
Redundancy
An employer’s obligations in redundancy situations will depend on whether a collective redundancy is proposed or it is a “normal” redundancy in a small business in Ireland.
This piece will look at non-collective redundancies; in collective redundancies there will be additional requirements on the employer imposed by the Protection of Employment Acts 1977 to 2007 and various regulations and other legislation.
As indicated already in relation to unfair dismissals, redundancy is a defence to a claim for unfair dismissal.
Genuine Redundancies
However it must be a genuine redundancy within the terms of the Redundancy Payments Acts 1967 to 2003 which sets out 5 redundancy definitions/situations.
These are:
1. The employer has ceased or intends to cease the business for which he employed the employee;
2. The requirements of the business have changed to the point where the employee is no longer required for the particular work for which he was employed;
3. The employer intends carrying on business with fewer or no employees;
4. The employer has decided the work which is being done by the employee will be done in a different way in the future and the redundant employee is not qualified or trained;
5. The employer has decided that the work will be done by another employee who is capable of doing other work for which the redundant employee is not trained or qualified.
Non Collective Redundancies
In non-collective redundancies in Ireland there are no specific procedural requirements set out to carry out a redundancy dismissal.
What the employer must be very aware of though is the Unfair Dismissals (Amendment) Act, 1993 as this act holds that if the conduct of the employer is unreasonable in carrying out a redundancy then it may amount to unfair dismissal.
There are 3 principal areas employers need to be careful about:
1. their conduct (and its reasonableness) in carrying out the redundancies
2. considering alternative options to redundancy and
3. selection for redundancy.
Unfair Selection for Redundancy
Recent cases involving unfair dismissal claims which centered around redundancy involved unfair selection for redundancy. For example, in this case the employee was awarded €50,000 because he was unfairly selected for redundancy.
So it is vital that the employer act reasonably in carrying out a redundancy and a principal factor in how reasonable the behaviour was will be how the employer selected the employee(s) for redundancy and whether there were other alternatives to redundancy such as alternative employment or some other type of work in the employer’s business.
From an employer’s perspective it is important to be able to point to the reasonableness of his conduct when faced with the necessity for redundancy.
Even though it is not a procedural requirement from a legal perspective it is good practice for the employer to hold meetings and discussions to explore any alternatives and it would be prudent for the employer to make a record of these discussions and proposals.
The ability of the employer to be able to point to a paper trail of how the decision to carry out redundancies was arrived at can prove invaluable at a later date, for example at an EAT or Rights Commissioner hearing.
 Fair Selection for Redundancy
The key point for an employer is to be able to demonstrate that people were selected fairly for necessary redundancies and that the employer acted reasonably at all stages of the process. The selection of employees for redundancy has led to many employers paying quite a high price at a later date before the Employment Appeals Tribunal and unfortunately there are no criteria laid down in legislation for the selection of employees.
Some factors to be considered by the employer should include:
*Attendance record
*Ability
*Disciplinary record
*Skill level
While many employers employ a policy of “last in, first out”. If there is a procedure in place in the workplace to deal with redundancy, as there is with most unionised workplaces, the employer will have to be able to show that the procedure was used to select each employee made redundant. Nevertheless, no matter what criteria are used, the employer may well have to stand over his/her selection procedures at a later date and being able to objectively justify his choice will be his best defence.