Richard Grogan on employment law: The constructive dismissal test

Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on a constructive dismissal case.

In case ADJ-5898, the Adjudication Officer dealt with a case of constructive dismissal.

The AO in this case set out in the conclusions that a claim for constructive dismissal is one where there is a very high burden on the employee. The AO pointed out that the employee must show the resignation was not voluntary.

The AO pointed out that the test is in the case of Western Excavating ECC Ltd -v- Sharp and that the AO must look at the contract of employment to establish whether or not there has been a significant breach going to the root of the contract. The AO quoted from that case:

“If the employer is 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, then the employee is entitled to treat himself as discharged from any further performance.”

The AO pointed out that if the AO was not satisfied that the contract tests have been proven, then the AO was obliged to consider the reasonableness test, being:

“The employer conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, then the employee is justified in leaving.”

In this case the AO pointed out that the Complainant was subjected to a relentless campaign of unwanted physical and verbal behaviour by an employee of the respondent. The employee reported the matter to her boss who more or less dismissed the Chef’s actions as nothing more than “banter”. At least three complaints to the Head Chef and no action was taken and the Chef was not subjected to any disciplinary process. Even after the Chef admitted the allegations he was not disciplined.

The AO pointed out that there should have been a thorough investigation immediately following the Complainant’s original complaints and that the Chef should have been suspended pending the outcome of that investigation and when the Chef admitted the allegations he should have been disciplined. The AO in this case held that the employee was justified in not reporting subsequent complaints because of the attitude toward her.

An award of €15,000 was made.

This case was taken under the Unfair Dismissal Legislation. It might equally have been taken under the Equality Legislation.

This case highlights significant inappropriate behaviour toward an employee. That sort of behaviour cannot be justified. In making an award under the Unfair Dismissal Legislation, the same considerations as would apply under the Equality Legislation do not apply. Under Equality legislation the award must be proportionate and be seen to be persuasive of an employer going forward. Under Unfair Dismissal an award cannot exceed the economic loss.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at
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