Barry Crushell: Burden of proof in constructive dismissal claims

Barry Crushell: Burden of proof in constructive dismissal claims

Barry Crushell

Barry Crushell examines a case highlighting the very difficult hurdles employees often face in bringing claims of constructive dismissal.

The case of Mark Lowry v JJ Fleming and Company Limited (ADJ00036677) examines the burden of proof issues that often arise in constructive dismissal claims. Uniquely, the employer offered no substantive evidence to support their case, yet won, highlighting the very difficult hurdles an employee often faces in bringing an unfair dismissal claim, following their resignation.

Mark Lowry, the complainant, brought a complaint under section 8 of the Unfair Dismissals Act 1977 against JJ Fleming and Company Limited, the respondent, to the Workplace Relations Commission (WRC), alleging that his workload was excessive, resulting in him having to work additional hours, that he was verbally abused by management and that, three days before Christmas 2019, informed that a replacement manager would be joining the company and that, if he wasn’t happy with this decision, he could resign.

What is unique about this case is that, at the outset of the hearing, the respondent chose not to present any evidence in defence of the claim of constructive dismissal. It was submitted by the respondent that the onus of proof was on the complainant and that he failed to discharge the heavy burden of proof necessary. On that basis, it was held that the case should be dismissed.

Legislation and case law

Section 1 of the Unfair Dismissals Act 1969 outlines two scenarios where an employee’s resignation may be considered a constructive dismissal. First, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment — in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed (the ‘contract test’).

In the English Court of Appeal case of Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 165, which has been referred to frequently by the Labour Court and the Employment Appeals Tribunal (EAT) in this jurisdiction, it was held that to meet the ‘contract test’ an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”.

Secondly, the Labour Court in the case of Waterford Senior Care Ltd & TabbUDD1938 (July 2019) stated that “the Act at Section 1 addresses the issue of reasonableness. It is settled law that the Court, in considering a complaint of constructive dismissal, must consider this issue either as an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he is justified in leaving.”

In further assessing the reasonableness test and the burden of proof, the EAT in McCormack v Dunnes Stores UD1421/2008 stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In the case of Duane v Masonry Fixed Services Ltd, heard in 2016, the EAT determined that: “It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve this. The claimant did not do so. He resigned before allowing the Respondent a reasonable opportunity to resolve his grievances.”

In the case of Jabczuga v Ryanair Ltd, the EAT states: “The claimant in this case failed to fully engage with an exhaustive grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the Respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Act 1977 to 2007 fails.”

The courts have placed the burden of proof on the complainant to show that his resignation was justified in all the circumstances.


Ultimately, the Adjudication Officer decided that “I cannot accept that the respondent was guilty of conduct which ‘is a significant breach going to the root of the contract of employment’ applying the test in Western Excavating (ECC) Ltd v Sharp”.

The Adjudication Officer, having heard the position of the complainant, determined that he had failed to discharge the burden of proof, most importantly failing “to exhaust all internal procedures of make any formal attempt to resolve matters in accordance with the relevant procedure outlined in his signed contract of employment. The Respondent was not given a reasonable opportunity to address these issues.”


The takeaway for employees considering bringing a complaint of constructive dismissal is to determine whether they have formally exhausted the internal grievance procedure, prior to resigning.

For employers, it will be necessary to demonstrate that an employee failed to take advantage of the internal grievance procedures, as part of any defence of a constructive dismissal claim.

  • Barry Crushell is principal solicitor at employment law specialist firm Crushell & Co.
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