It is well established that in cases of constructive dismissal, an employee is generally expected to have exhausted his or her employer’s internal procedures before leaving employment.
However, the decision of the Workplace Relations Commission (“WRC”) in Tara Cassidy v Bank of Ireland illustrates that it is not an absolute requirement in all claims of constructive dismissal.
In this case, the Complainant brought a claim to the WRC under the Unfair Dismissals Acts 1977 – 2015 claiming that she had no choice but to tender her resignation due to the Respondent’s conduct and that, as such, this amounted to a constructive dismissal.
Facts: The Complainant commenced employment with the Respondent in December 2018 in the role of Customer Adviser. Approximately a year later, a further role in the bank became available which was a “hybrid” role encompassing some elements of her own role and some duties relating to a Mortgage Specialist role. She expressed an interest in moving to this role and her application was successful. She received an email containing an overview of her new role on 16th December 2019 and she commenced the new role on that day. This email also confirmed that staff transfer announcements would be made the following day.
The Complainant believed that the new role would enable her to advance to a band 2 salary. She gave up her office and trained up her successor. Senior management subsequently informed her that the hybrid role had not been authorised by Human Resources and that therefore her service in that role had not contributed towards her progressing to a band 2 salary. At that stage, the Complainant had been working in that role for approximately 10 months. The Complainant and Respondent did not agree on the extent to which the Complainant had been carrying out the new role.
The Complainant complained to line management numerous times about the lack of recognition of her new role and the lack of salary review or advancement to a band 2 salary. Having received no satisfactory response, she escalated matters to senior management in December 2020. As the matter was still not resolved, she raised the issues with Human Resources in February/March 2021 and was informed that she should raise a formal grievance, which she did after she resigned at the end of March 2021. She was then informed that she could not do so because she was an ex-employee. The Complainant proceeded to lodge a complaint with the WRC.
Decision: The Adjudicator outlined the established “contract test” and “reasonableness test”. The Adjudicator noted that the “contract test” was relevant because the Complainant had been working in the hybrid role for a considerable period understanding that it was an authorised new role. He noted that when the Complainant was told that the role was not in fact authorised, this left her “in limbo”. The Adjudicator pointed out that he was required to consider whether the situation “was so serious that it frustrated the relationship between the parties beyond repair”.
The Adjudicator referred to Excavating Ltd v Sharp [1978] IRLR 322 where Lord Denning set out the test as being whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, and if so, the employee is justified in leaving”. He assessed the conduct of the Respondent and criticised the Respondent’s communication with the Complainant, its lack of clarity, and its response to her complaints.
The Respondent never communicated the fact that the hybrid role would not be proceeding, and no explanation was provided to the Complainant for the row back. The Adjudicator found that
“By not recognising the Hybrid role, management had repudiated the contract and undermined the mutual trust with the complainant. Management provided no evidence at the hearing that explained the row back to the complainant over this period. There were no reasons shared with the complainant or a commitment to recognise her service in the role.”
He noted that the Complainant formally raised the non-recognition of her role and related issues with senior management and found that she “cannot be faulted or disadvantaged for not raising a formal grievance.” He acknowledged that management had suggested that she raise a formal grievance, but pointed out that it had done so very belatedly, and the Complainant had already raised her issues formally at that stage.
The Adjudicator decided that under the contract and reasonableness tests, “there was sufficient and objective evidence that the complainant had little option but to resign.”
Redress: The Adjudicator awarded the Complainant €3,810, representing six weeks’ pay taking into consideration submissions made by both parties regarding the Complainant’s financial loss and the fact that she obtained alternative employment within a number of weeks.
Takeaway for Employers: It may not be necessary for employees to follow or exhaust internal grievance procedures to be successful in a constructive dismissal claim as much will turn on the reasonableness (or otherwise) of the employer’s handling of concerns raised by employees. Employers need to give due regard and attention to issues raised by employees outside of the grievance procedure; in this case the Adjudicator was satisfied that although the Complainant had not raised a formal grievance, she had formally raised her issues with management well in advance of resigning. If an employer wishes an employee to follow a particular grievance procedure, this should be communicated to the employee in early course.
Authors – Nicola MacCarthy, Jenny Wakely and Anne O’Connell
23rd December 2022