Constructive dismissal is what happens when an employee is pushed out of a job without being officially fired. In simple terms, it occurs when an employer makes the workplace so unfair, hostile, or intolerable that an employee has no real choice but to resign. Even though the employee submits a resignation letter, the law treats the situation as if the employer dismissed them. This concept is often misunderstood by both employers and employees, yet it carries serious legal and financial consequences. Recent Kenyan court decisions have clarified what constructive dismissal looks like in practice and why leadership behavior and workplace systems matter more than intention.
What the Courts Mean by Constructive Dismissal
Kenyan courts define constructive dismissal as a resignation caused by the employer’s conduct, where that conduct fundamentally breaches the employment contract or destroys the trust between employer and employee. The focus is not on whether the employer said “you are fired,” but on whether the employer’s actions made continued employment unreasonable.
Recent decisions such as Adyang v Wrigley Company (EA) Limited [2025] KEELRC 3436 and Kihara v Almasi Bottlers Limited [2025] KECA 1893 confirm that employers may be held liable even where they did not intend to force an employee out.
Employer Conduct Is the Trigger
At the heart of constructive dismissal is employer behavior. Courts look closely at how the employer treated the employee and whether that treatment crossed the line of fairness. Common examples include unilateral changes to employment terms, persistent unfair disciplinary action, humiliating treatment, or failure to address grievances.
Even isolated acts can amount to constructive dismissal if they are serious enough, while repeated smaller acts can collectively destroy the employment relationship.
No Termination Letter Is Required
One of the most important clarifications from the courts is that constructive dismissal does not require a formal termination. An employer may believe they are safe because the employee resigned voluntarily. However, if the resignation was a direct response to the employer’s conduct, the law may still treat the exit as a dismissal.
This principle prevents employers from indirectly forcing employees to leave while avoiding formal termination procedures.
The Reasonable Employee Test
Courts apply an objective test: would a reasonable employee, facing the same treatment, feel compelled to resign? This protects employers from claims based purely on emotion while safeguarding employees from abusive or unfair working conditions.
Employees must show that the employer’s conduct was serious, unreasonable, and incompatible with continued employment.
Link Between Conduct and Resignation
Timing and causation are critical. The employee must demonstrate that the resignation was prompted by the employer’s conduct. Delaying resignation for a long period or resigning for unrelated reasons weakens a constructive dismissal claim.
Courts expect employees to act within a reasonable time once the breach occurs.
Trust and Confidence Are Legal Obligations
The Court of Appeal in Kihara v Almasi Bottlers Limited emphasized that employers have a legal duty to maintain mutual trust and confidence. Once this trust is broken by unfair conduct, constructive dismissal may arise even without bad faith or malicious intent.
This underscores the importance of leadership conduct and workplace culture in legal compliance.
Conclusion
Constructive dismissal teaches a powerful lesson: how employees leave an organization often reflects how they were treated while inside it. Kenyan courts have made it clear that resignation does not automatically protect employers from liability. Where unfair treatment, hostility, or breach of trust forces an employee to resign, the law may step in.
For employers and HR professionals, preventing constructive dismissal requires more than legal awareness. It requires building fair systems, training leaders, and responding promptly to employee concerns. For employees, understanding constructive dismissal helps distinguish between ordinary workplace challenges and conduct that crosses legal boundaries
Ultimately, constructive dismissal is about accountability. Organizations that focus on respectful leadership, clear processes, and humane people management are not only legally compliant — they are also better places to work.
_ CHRP K Brender Aluoch
/Strategic HR Leadership/ Data/ People System/Compliance.
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