Resigning because of how you have been treated: constructive dismissal in Ireland

Resigning because of your employer's conduct is a dismissal in Irish law. Section 1 of the Unfair Dismissals Act 1977 defines dismissal to include, at paragraph (b), the termination by the employee of the contract of employment, whether or not notice was given, 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 without notice.

That definition contains two separate tests, and you only need one of them.

The two tests

The entitlement test asks whether the employer's conduct amounted to a repudiatory breach of contract — a breach going to the root of the bargain, which entitled you to treat the contract as at an end. Cutting pay or hours without agreement, unilaterally changing the job, and a sustained failure to pay what is owed are the usual examples.

The reasonableness test is wider. It asks whether the employer's conduct was such that it was reasonable for you to resign, even if there was no clean contractual breach. Sustained bullying, a refusal to deal with a grievance, and an unsafe workplace fall here.

Either way, the burden is on you. In an ordinary unfair dismissal claim the employer must prove the dismissal was fair. In a constructive dismissal claim you must first prove there was a dismissal at all.

Two thresholds that end most claims before the merits

Service. Section 2(1)(a) of the Unfair Dismissals Act 1977 excludes an employee who, at the date of dismissal, had less than one year's continuous service. Constructive dismissal is a dismissal under that Act, so the exclusion applies to it. The exceptions are the categories the Acts protect from day one — trade union membership or activity, pregnancy and maternity-related matters, exercising a statutory leave entitlement, and making a protected disclosure.

Time. A complaint must be presented within six months of the date of termination, extendable to twelve months only for reasonable cause. The clock runs from the last day of employment, not from the conduct.

Use the grievance procedure

This is the single most common reason an adjudication officer dismisses a constructive dismissal complaint that is otherwise well founded. The Workplace Relations Commission expects an employee to have given the employer the opportunity to put the matter right, through the grievance procedure, before resigning — unless doing so would plainly have been futile, which is a high bar and one you have to evidence.

If there is still time, raise the grievance in writing and let the resignation follow the employer's response, or its failure to give one. The Code of Practice on Grievance and Disciplinary Procedures declared by S.I. No. 146 of 2000 is the reference point.

If you have under a year's service, look somewhere else

The underlying treatment may still be actionable even where the Unfair Dismissals Acts are closed to you:

• Employment Equality Acts 1998 to 2021 — discrimination, harassment or victimisation on any of the nine grounds. No service requirement at all.
• Payment of Wages Act 1991 — if pay was cut or deducted, section 5 gives a free-standing complaint.
• Terms of Employment (Information) Act 1994 — section 5(1) requires any change in your terms to be notified in writing not later than the day the change takes effect; a unilateral change to hours or pay is usually also a breach of this.
• Organisation of Working Time Act 1997 — refused breaks, unpaid leave, no rest periods.
• Protected Disclosures Act 2014 — penalisation for a protected disclosure, protected from day one.

What to put in the letter, and what not to

Say plainly that you are resigning because of the conduct, and describe the conduct with dates. Record whether you raised a grievance and what happened to it. Reserve your rights expressly. Do not say you are leaving for a new job, do not thank them for a wonderful few years, and do not sign anything describing the departure as a mutual agreement — each of those is the first document the employer will put in front of the adjudication officer.

Whether you work notice is a separate question. Section 8 of the Minimum Notice and Terms of Employment Act 1973 preserves the right of either party to terminate without notice because of the other's misconduct, so a genuine constructive dismissal case is one of the few where leaving immediately is defensible. But the section 1(b) test does not require it, and working your notice does not defeat the claim.

Your final payment is owed either way

Section 23(1) of the Organisation of Working Time Act 1997 requires payment for accrued untaken annual leave on cesser, and section 23(2) adds a day's pay where the employment ends in the week before a public holiday and you worked the preceding four weeks. Neither depends on how or why you left.

Our resignation letter has a branch for this: it records the conduct, the grievance history and an express reservation of rights, and it warns where the service or grievance position makes the claim difficult. For the notice rules generally, see how much notice you actually have to give.