The influence of the law of the United Kingdom in the design of Irish social legislation is notorious. While the imprints of its British antecedents are stamped on the general design of the (Irish) Unfair Dismissals Act 1977, the Irish Act introduced at least two innovations: (1) the imposition on employers of a comparatively higher ‘substantial grounds’ standard for justifying direct dismissal (rather than the weaker British ‘reasonable’ grounds standard); and (2) the insertion of a more liberal ‘reasonable to resign’ standard for justifying constructive dismissal (in place of what appeared, in the mid-1970s, to be the more restrictive British common law ‘entitled’ to resign standard).
In various ways, these innovations have not been fully realized. Employees have been denied the benefit of the ‘substantial grounds’ standard by the translation -inappropriately, it is argued- into Irish law of the British range of reasonable responses and reasonable employer tests. At the same time, the reasonableness test for constructive dismissal has become over-calcified. This has been caused by the insistence by the employment tribunals that the employee must, as a condition to claiming constructive dismissal, first exhaust the employer’s grievance processes.While failure to resort to internal processes can be a factor which may affect the ‘reasonableness’ of the decision to resign without notice, there will be cases in which it can be quite ‘reasonable’ to terminate the relationship without resorting to the employer’s grievance process. In the same way that full effect is not being given to the ‘substantial grounds’ standard which regulates direct dismissal, it is possible that full effect is not always being given to the ‘reasonableness’ standard which regulates constructive dismissal.
International Journal of Comparative Labour Law and Industrial Relations