In this case between Tara Quinn and her employer Park publications Ltd, Tara is considering resigning and claiming constructive dismissal on the grounds that she believes she is being unfairly treated because she refuses to make changes to her employment contract after they took over the company twelve months before. She recently received a final written warning after missing a deadline and believes the company is trying to work her out of the business unless she concedes It is my plan to examine the employment law relevant to this case such as The Unfair Dismissals Act, to determine if Tara were to take a constructive dismissal case would it be successful. To look at various different aspects of the law such as Transfer of Undertakings Protection of Employment to advise Tara to her rights as an employee after the company changed hands. The Code of Practice on Grievance and Disciplinary procedure 2000, to look at the approach taken by her employer when issuing the written warning. Based on the facts of the law I will then offer Tara advice or remedies to her current employment situation.
The Unfair Dismissal Act 1977
Constructive Dismissal arises where an employee terminates their contract of employment with or without prior notice due to the conduct of the employer. The employee’s resignation is classified as involuntary as a consequence of breach of contract by the employer, and were the actions of the employer were so unreasonable that the employee was left with no option but to resign. (1)
The employee is entitled to regard their contract as terminated if:
- The employers conduct amounts to an actual breach of the contract of employment.
- The employers conduct shows that they no longer intend to be bound by one or more of the essential terms of the contract.
- The employer has acted unreasonably.
- Conduct by fellow employees that go unchecked by the employer may also be taken into account. (2)
Points to note in regard to constructive dismissal
- The burden of proof lies solely with the employee.
- The complaints or grievance procedure should be utilized before resigning.
- Any outside industrial relations procedures should be used before resigning.
- Resigning should be the last resort after having used all available means of resolving the problem. (3)
The Employment appeals Tribunal (EAT) will have regard to the employees conduct prior to resignation and in considering whether it was reasonable will look at whether the employee brought their concerns to the employers attention and whether they utilized and exhausted internal grievance procedures. Or whether the employer was given adequate opportunity by the employee to deal with their concerns. (4) When applying the law of the Unfair Dismissals Act to the facts of Tara’s case, Tara would need to prove that her employer left her with no other option but to resign. A Tribunal will test if there was any considerable breach in her contract or if the employer’s actions were unreasonable. In this case as it stands, resigning is not the last resort. Tara has not voiced her concerns to her employers or utilized the grievance procedure in any way. In the case between Daniel O’Gorman V Glen Tyre Company (Case No UD2314/2010) and the case between Mark Harold V St Michaels House, both cases were brought to The EAT on grounds of Constructive Dismissal and both cases failed for the same reason. The claimant’s, in both cases, lack of engagement with the respondent’s in relation to their grievances meant that their termination of their own employment was found to be unreasonable. (7)
Transfer of Undertaking Protection of Employment Regulations (TUPE)
The Transfer of Undertaking Protection of Employment Regulations apply where a transfer of business from one employer to another as a result of a legal transfer. As stated in the Irish Statute Book, following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiring of the collective agreement or the entry into force or application of another collective agreement. (5) In other words when a transfer has taken place the new employer is obliged to abide by the existing employment contracts for employees, unless a mutual agreement can be made between the new employer and the existing employees. When applying this law to Tara’s case she is perfectly within her rights to continue to work under the terms of her own contract and has the right to refuse any changes.
The Code of Practice on Grievance and Disciplinary Procedures 2000.
The main purpose of the code is to provide guidance to employers on the general principles, which apply in grievance and discipline procedures. To apply disciplinary measures in a fair and consistent manner. For management to maintain a satisfactory standards. For employees to have access to procedures where alleged failures to comply with these standards may be fairly addressed. (6) All disciplinary matters should be conducted with due regard to natural justice and fairness. Natural justice includes:
- The right to know the nature of the allegations made against you
- The right to a fair and impartial hearing
- The right to representation
- The right to state your case
- The right to appeal
Disciplinary steps may include:
- Verbal warning
- Written warning
- Final written warning
- Suspension or dismissal
All disciplinary steps should be progressive depending on the seriousness of the offense. The Code of Practice on Grievance and Disciplinary Procedures 2000 can be used in a couple of areas in Tara’s case. Tara received a final written warning for missing a deadline to return completed accounts to the company’s head office. Judging by the facts of the case, Tara wasn’t offered the right to a hearing or the right to representation. Also the company deemed the offense serious enough to skip past a verbal warning, straight to a written warning, to which Tara has the right to appeal.
In my opinion, I feel, at this time, if Tara were to take a case of constructive dismissal, it would fail as she has not exhausted all avenues on an internal basis first and a tribunal would find her resignation unreasonable. Outside of this Tara is still left in a difficult situation. I feel her manager’s approach with the written warning was incorrect and Tara did not receive Natural Justice and fair treatment. She wasn’t offered the right to representation, there was no investigatory meeting and she wasn’t offered any representation. It would be my advise to Tara to appeal the written warning to her managers superior and request a right to state her case. During an appeal meeting Tara could bring along her own representative and raise the issues she is having with her manager in relation to changing aspects of her contract. At this time she may discuss and negotiate new terms and conditions or stick with her original contract. After the appeal meeting Tara’s employer may decide to proceed with the written warning depending on how serious they feel her offense was. If after all of Tara’s concerns have been documented and the problems persist between herself and her manager she may then consider going on to a constructive dismissal case.