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Constructive Dismissal

The burden of proof in constructive dismissal cases is high and it is up to a claimant to prove that their employer was guilty of conduct that amounts to a significant breach of the contract of employment or that the employer's behaviour was so unreasonable that an employee could not be expected to put up with it any longer.

The claimant contended that she was forced to resign from her employment in December 2015 as she felt she was being harassed during her absence on sick leave about her sick certificates and returning to work and about a work project that she had responsibility for. The claimant also said her employer invaded her privacy by contacting her emergency contact without her permission. Previous to this period of leave in 2015 there were other incidents that the claimant raised with regard to a subordinate being promoted into a team leading position as well as the fact that some of her colleagues had received a pay rise and she didn't. The claimant said she had also been given a project to do that she was unable to finish as it was outside her comfort zone and she was overworked. The claimant presented that she had needed time off in September 2015 to spend with her son, who had previously been causing problems for her at home and for which her employer had provided counseling support.

The respondent provided details of an open and transparent selection process for the Team Lead promotion and that the claimant had been notified well in advance of the competition. The respondent provided evidence through emails sent that they had offered the claimant assistance with her project, as well as the fact that they had extended the completion deadline a number of times. The respondent said they had also facilitated additional working from home for the claimant due to the problems she was having with her son and had offered her the use of their EAP services to assist with the difficult time she was having.

The respondent admitted that they had been engaged in communication with the claimant during her period of sick leave as she had not submitted sick certificates as required but also because they were concerned for her as she had told them she was suicidal, and that was why they contacted her emergency contact.

The Adjudication Officer found that there was no evidence that there was any significant breach that went to the root of the employment contract and that in light of all the circumstances that had presented the respondent had acted reasonably and out of concern for their employee who was going through a difficult time personally and with her son.

The Adjudication Officer determined that the selection process for the promotion position was fair and available to the claimant. It was also found that it was reasonable for the respondent to keep in communication with the claimant during her period of sick leave as she was not submitting certificates as required and secondly it was accepted that they were genuinely concerned about her after she said she was feeling suicidal. It was also considered reasonable that a fit to return to work certificate was requested from the employee due to the length of her absence.

The Adjudication Officer therefore determined that the claimant had not met the required legal standards to justify that she had been left with no option but to resign from her employment.

This case demonstrates that employers who manage absences sensitively and in line with an appropriate and reasonable level of communication will not find themselves being on the wrong end of a constructive dismissal claim.

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