Constructive Dismissal in Kenya: When Resigning Counts as Being Fired

An employee does not have to be handed a termination letter to have a valid claim for unfair termination. Kenyan law recognises that an employer can, through its own conduct, leave an employee with no real choice but to walk away, and the law will treat that resignation as a dismissal all the same. This is the doctrine of constructive dismissal, and it is distinct from an ordinary wrongful termination claim, where the employer plainly ends the contract, or a redundancy dispute, where the employer cites genuine operational reasons for closing a role. Constructive dismissal asks something different: did the employer’s conduct make it unreasonable to expect the employee to stay, so that the resignation should, in law, be treated as the employer’s doing?

What Constructive Dismissal Actually Means

Constructive dismissal arises where an employer’s conduct amounts to a fundamental breach of the employment contract, one that goes to the root of the relationship, and the employee resigns because of it rather than continue working under those conditions. The employee is not quitting in the ordinary sense; they are responding to a breach the employer has already committed. Kenyan courts apply this using two overlapping ideas: whether the employer’s conduct was so unreasonable that the employee could not fairly be expected to remain, and whether it amounted to a breach of an essential term of the contract, written or implied. Both ask the same practical question: did the employer, not the employee, break the relationship first?

Where This Sits in the Employment Act, 2007

It is worth being precise about what the Employment Act, 2007 actually says, because commentary online often overstates it. Section 2 of the Act defines a “contract of service” but contains no standalone definition of “termination of employment” that expressly names constructive dismissal, and the phrase does not appear anywhere in the text. Constructive dismissal in Kenya is a doctrine built by the courts, not a defined statutory term.

What the Act does supply is the framework the courts use to house the doctrine. Section 45 prohibits unfair termination and puts the burden on the employer to prove that a termination had a valid, fair reason and followed a fair procedure. Section 41 requires an employer to hear an employee before terminating for misconduct, and section 43 confirms the burden of proving the reason for a termination sits with the employer. Where an employee resigns because of a fundamental breach, the Employment and Labour Relations Court treats that resignation as a “termination” for section 45 purposes, so the employer still has to justify it. If it cannot, the termination is unfair, whether or not the employee wrote the resignation letter.

The Test Kenyan Courts Apply

The Employment and Labour Relations Court (ELRC) has applied this doctrine in a number of cases, and two recent decisions show both the test and how demanding it is in practice. In Kinyanjui v ASA International (Kenya) Limited, the petitioner alleged a hostile work environment built on unequal pay between local and expatriate staff in the same job grade. The court held that constructive dismissal requires employer conduct that is fundamental or significant, going to the root of the contract, plus a causal link to the decision to leave. It found no constructive dismissal, because the petitioner’s own resignation letter was clear, raised no complaint, and thanked the employer.

In Korir v Mediheal Group of Hospitals, the ELRC applied the same reasoning, framing it as either conduct so unreasonable the employee could not be expected to stay, or a repudiatory breach of an essential term. The claimant alleged withheld salary over several months and non-payment of maternity and leave entitlements, but the court found she had simply stopped coming to work without resigning or recording the alleged breach, and held this fell short of constructive dismissal. Together, the cases confirm the doctrine is live in Kenyan courts, but that employees invoking it face a real evidentiary hurdle.

What an Employee Must Show, and When

Three things tend to decide these cases. First, the conduct has to be serious enough to strike at the foundation of the contract. General friction or a difficult manager will not meet that bar. Conduct capable of meeting it typically includes a unilateral demotion, a unilateral cut to pay or benefits, a forced transfer without contractual basis, or a persistently hostile environment the employer knew of and failed to address. Second, there has to be a clear causal link to the resignation, and the resignation letter matters: one that is silent about the employer’s conduct, or that thanks the employer, can be used against the employee later, as in the ASA International case. Third, the employee generally needs to resign reasonably promptly and on the record, rather than simply stopping attendance, as happened in the Mediheal case. Delay, or an ambiguous exit, tends to be read as acceptance rather than rejection of the employer’s conduct.

Remedies Available

Where a court finds a resignation amounted to constructive dismissal, the remedies are the same as for any other unfair termination, because the resignation is treated as a termination by the employer. Section 49 allows for notice-period wages, any proportion of wages due for work already done, and compensation of up to twelve months’ gross wages, assessed against length of service and the circumstances of termination. Reinstatement or re-engagement can also be ordered, though this is unusual once the relationship has broken down to the point of a forced resignation. There is no separate, enhanced remedy for constructive dismissal itself. Its value is that it converts what would otherwise look like a voluntary resignation, with no claim attached, into an unfair termination the employer must answer for.