by Anne Lyne July-27-2023 in Employment Law
“It’s not me, it’s you”: is it necessary for a departed employee to have exhausted all internal procedures before lodging a constructive dismissal complaint?
It may come as a surprise, but the short answer here is ‘not necessarily’.
Whilst the instinctive view might be that a failure to voice workplace concerns using an employer’s grievance or dignity at work procedure would be fatal to an individual’s constructive dismissal claim, recent decisions issued by the Workplace Relations Commission (“WRC”) and Labour Court respectively indicate that this is not always the case.
First, what is constructive dismissal?
Constructive dismissal arises where an employee opts to resign from their employment on account of their employer’s conduct. When making the claim in the first instance, the onus is on the employee to prove their decision to resign was a reasonable and proportionate response and satisfy the deciding body (be it the WRC or the Labour Court) of one of the following tests:
- The Contract Test: The employer is guilty of committing a significant repudiatory and fundamental contract breach. The conduct must result in a breakdown of trust and confidence in the employment relationship to the degree that the employee can no longer tolerate or endure the working relationship any further. In other words, the employee must be left with no option but to resign as a last resort.
- Reasonable Test: The employer has conducted itself so unreasonably that the employee cannot be expected to put up with it any longer.
Just as the employer’s conduct is important…
Traditionally, where no attempt is made by an employee to invoke internal procedures, this was seen as detrimental to any claim. However, the recent decision of Bridgehall Taverns v Deirdre Walsh (UDD2322) demonstrates that where an employer does not proactively encourage an employee to use a grievance policy or other form of procedure to address an issue, the Labour Court held that the employee could “not reasonably have been expected to use the procedure” and that the employee was “justified in regarding herself as having been constructively dismissed”.
At the same time, other decisions also clarify that exhausting internal channels is not always an incumbent feature of the reasonableness test and any attempt to dismiss a claim on that basis needs to be evaluated in terms of substance first.
…the employee’s conduct is just as important
The Labour Court panel in Rehab Groups v Roberts (UDD2026) found it “scarcely surprising” that a complaining employee felt she had to resign. In this case, while the employee had not exhausted all internal procedures, the court was satisfied that assurances had been given by her employer that her complaint would be addressed in a prompt and efficient manner. The employer’s subsequent inaction therefore led to a finding that she had been constructively dismissed.
Similarly, in Cassidy v Bank of Ireland (ADJ-00034191), an employee sent several email communications to senior members of management regarding her particular workplace concern. While her employer asserted that she had not lodged any formal grievance, the Adjudication Officer held the emails clearly articulated her concerns and therefore constituted sufficient evidence that the issues were brought to her employer’s attention. The WRC then heard that the employer’s meagre response to concerns raised “eroded her trust” that the issues would be resolved. Considering this, the WRC determined the employee could not be faulted or disadvantaged for not raising her grievance formally.
Takeaways
These cases indicate that so long as an individual has sufficiently notified and brought a workplace concern to the attention of their employer and the employer subsequently fails to act on the concern raised, a claim for constructive dismissal will not automatically fail. On that basis, precedent indicates that it is reasonable for the employee to resign where their concerns are not adequately considered or addressed by the employer.
As a means of avoiding non-routine complaints, these cases serve as a good reminder to organisations and businesses alike that they should ensure employees have good knowledge of the formal processes to be followed when raising any workplace issues or concerns. It is not enough for an employee to be pointed towards formal channels set out in a written policy or employee handbook; businesses must ensure that those formal channels are not only followed but applied practically.
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About the Author
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Anne Lyne
Anne is a partner and leads the Employment Law team at Hayes solicitors advising on the full range of employment related issues.
Anne understands that if an employment related issue arises that responsiveness and practical assistance are key for clients. Anne and the team are available for clients to ensure that matters are addressed promptly.