Constructive Dismissal under the Kenyan Law

Dismissal from employment in Kenya is guided by the principle of fairness under Article 41 of the Constitution, which guarantees employees the right to fair labour practices. The Employment Act, 2007 outlines lawful termination methods but does not expressly recognize constructive dismissal. Instead, this concept arises under common law principles, particularly concerning breaches of employment contracts.

What is Constructive Dismissal?

Constructive dismissal occurs when an employee resigns due to the employer’s fundamental breach of contract. The resignation must be in response to the breach and occur within a reasonable time. The Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) set out a contractual approach test with the following principles;

1. The terms of the employment contract must be assessed.
2. The employer’s conduct must amount to a fundamental breach.
3. The breach must indicate an intent not to be bound by the contract.
4. An objective test is applied to evaluate the employer’s conduct.
5. The employee must prove that the employer’s conduct led directly to resignation.
6. The resignation must occur within a reasonable timeframe.
7. The employee should not have waived or accepted the breach.
8. The burden of proof lies with the employee.
9. An employment relationship must have existed at the time of resignation.

Employer’s Conduct Leading to Constructive Dismissal

For a claim of constructive dismissal to succeed, the employer’s conduct must amount to repudiation of the employment contract. Common breaches include;

1. Unilateral changes to contract terms (e.g., salary reduction, job role changes without consultation).
2. Non-payment or delayed payment of wages.
3. Harassment, discrimination, or hostile work environment.
4. Failure to assign work per job description.
5. Forced resignations due to coercion or intolerable conditions.

Courts focus on the impact of the employer’s actions rather than their intent. If an employee continues working for a significant period after the breach, they may be deemed to have accepted the employer’s conduct, making a claim for constructive dismissal unlikely to succeed.

Recent Case Law

1. Thomas Olum Migayo & Another v SC Johnson & Son Kenya Limited [2020] eKLR – The court held that an employer’s conduct compelling resignation amounts to constructive dismissal.
2. Kenya Union of Sugarcane Plantation & Allied Workers v Othira (Appeal E005 of 2023) [2024] KEELRC 843 (KLR) – Established that resignation is the employee’s way of communicating the intolerability of the employer’s conduct.
3. Mutai v Kisa & Another [2022] KEELRC 1543 (KLR) – Found that constructive dismissal can be considered unfair dismissal under Section 45 of the Employment Act.
4. K’owino v African Commuter Services & 2 Others [2025] KEELRC 600 (KLR) – Affirmed that claims for constructive dismissal must be filed within six years, as per the Limitation of Actions Act.
5. Herbert Wafula Waswa v Kenya Wildlife Services [2020] KEELRC – Held that resignation to avoid disciplinary action does not qualify as constructive dismissal.

Burden of Proof & Timeliness
Employees must prove that their resignation was due to the employer’s intolerable conduct and that no other reasonable option existed. Courts apply an objective test, requiring employees to demonstrate:

1. The employer’s actions made the working environment intolerable.
2. The resignation was in response to these actions.
3. The resignation was timely; prolonged continuation of work may be seen as acceptance of the conditions.

Remedies for Constructive Dismissal

If a claim is successful, courts may award:

1. Unpaid salary up to the resignation date.
2. One-month salary as compensation for unfair termination.
3. Payment for unused leave days on a pro-rata basis.
4. Certificate of Service, where employment exceeded four weeks.

Reinstatement is not a remedy in constructive dismissal cases since the employee has already deemed the workplace intolerable.

Conclusion
Constructive dismissal is a complex area of employment law requiring employees to meet strict legal criteria. Kenyan courts follow an objective test and emphasize timeliness in resignation. Employers must ensure compliance with employment laws to avoid claims, while employees facing contract breaches must act promptly and gather necessary evidence for legal redress.

Legal advice is essential when pursuing a claim of constructive dismissal. Are you and employer or an employee. Talk us to help you understand, assess and break down this concept through info@anyanzwajsadvocates.co.ke