“We help people who have been dismissed or pushed out of their jobs because of some discriminatory ground to legally pursue redress, resulting not just in financial compensation but in a renewed belief, confidence and pride in themselves.”
Clearly dismissing someone because they are a member of one of the protected groups would be discriminatory. For example, dismissing someone for being a particular race or colour or because of their religious beliefs of because of their age or because they are pregnant would be in breach of the Acts.
But what about someone who decides to resign because they can no longer tolerate the unfair treatment to which they are being subjected because of their particular trait or characteristic? These people are also protected by the Acts and this is a concept known as Discriminatory Constructive Dismissal. The definition of dismissal in the Acts is:
““dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;”
The tests for constructive dismissal in the context of claims for discrimination are the traditional contract and reasonableness tests.
“[The] definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.”
In a well-known disability case, A Worker (Mr O) v An Employer [2005] E.L.R. 132 it was held that a Claimant had been constructively dismissed due to the treatment that he had experienced from the Respondent when he returned to work following a period of sick leave due to a disability. The Labour Court found that the Respondent had failed to treat the Claimant in a sympathetic manner and was instead intent on making his working life difficult. Crucial in the decision was the fact that the misconduct had been perpetrated by a person of high rank within the organisation who knew or ought to have known that their behaviour would have a negative effect on the health of the Claimant and were and this misconduct was perpetrated in a manner likely to destroy the relationship of mutual trust and confidence having regard to the Claimant’s emotional and psychological vulnerability. Interestingly, the Claimant was not penalised for failing to enact the Respondent’s grievance procedure.
In Fergal Reilly v. United Parcels Service CSTC Ireland Limited DECE2013077, the Equality Tribunal held that a Claimant had been discriminatorily constructively dismissed on the basis of disability discrimination, a failure to provide reasonable accommodation and a satisfaction of the reasonableness test.
The law applicable to constructive discriminatory dismissal was considered by the Labour Court in the case of A Worker (Mr O) v. An Employer [2005] ELR 132. The Labour Court observed that the definition of dismissal contained in the Equality Employment Act 1988 was similar to that in the Unfair Dismissals Act 1977 and outlined that the authorities relating to the 1977 Act were applicable to equality situations.
The Labour Court observed that there were two approaches to a consideration of constructive dismissal: the “contract” test; and the “reasonableness” test. It noted that the contract test dictates that if an 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 essential term of the contract, then the employee is entitled to consider himself discharged from any further performance. The Labour Court observed that the breach would have to be a breach of an essential term which goes to the root of the contract. The Labour Court outlined the “reasonableness test” as follows:
“This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.”
This review of the law was applied in the case of Stone v. I Maloney & Sons Limited [2011] 22 E.L.R. 74. The Equality Officer stated:
“The Labour Court, in the case A Worker (Mr O) v An Employer [2005] E.L.R. 132, has addressed the issue of constructive dismissal under the Acts comprehensively. It set out the main applicable tests, these being the “contract” test and the “reasonableness” test, and held that these tests may be used either in combination or in the alternative. I find that in the case on hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable or unreasonable depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address an employee’s grievance or complaint.
I am satisfied that the experience of continuing harassment over the course of more than a year, and the continuing requirement to work with her harasser placed considerable stress on the Claimant. I am further satisfied that by the time of the Claimant’s resignation, the respondent was fully aware of her grievances, yet not only persisted with his unlawful conduct, but, as found above, had also started to victimise the Claimant. It therefore cannot be said that he addressed her complaint in a meaningful or satisfactory manner, and that therefore his entire conduct towards the Claimant must be regarded as so unreasonable that it would have been unfair to expect the complaint to continue to put up with it.”
If you believe that you may have been dismissed on discriminatorily grounds or constructively dismissed because of those grounds and to find out more about your rights or how we can help you call us on 1890 88 90 90 or email info@employment-matters.ie with your concerns.