Constructive Dismissal – the Burden of Proof rests with the Employee

Unfair Dismissal Award

When an employee terminates his/her employment and lodges a claim for constructive dismissal under the Unfair Dismissals Act 1977, the onus of proof rests with the employee to prove that their resignation was justified in the circumstances.
Where an employee alleges that he/she was constructively dismissed the onus is on the employee to prove the case on the balance of probabilities.

What are the tests which the Employment Appeals Tribunal will apply?

In accordance with the definition of constructive dismissal as outlined in the Unfair Dismissal Act, the Employment Appeals Tribunal considers constructive dismissal claims under two separate headings.
I. The Reasonableness Test

When applying the reasonableness test, the Tribunal has held that an employee can argue that the employer’s conduct was such that it was reasonable for the employee to resign from his or her employment.

However, the Tribunal has tended to examine the conduct of both employer and employee in considering whether the resignation of the employee was reasonable in all the circumstances.

II. The Contractual/Entitlement Test

In applying this test, the Tribunal has determined that an employee is entitled to terminate the contract of employment only where the employer is guilty of conduct which is either a significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.


Whilst an aggrieved employee may feel constructively dismissed, there is an onus on him or her to fully utilize the grievance procedures prior to termination of employment and to effectively illustrate that he or she was reasonable in terminating the employment contract.
A misinterpretation or a breakdown in communication is not sufficient to justify an employee dismissing themselves by way of constructive discharge.
With that in mind it is important employers have written procedures in place in line with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 2000) for dealing with such matters.

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Next Steps

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