The court has ruled that an employer can still be held responsible for an employee’s resignation if its conduct makes the workplace so difficult or intolerable that the employee has no real choice but to leave.

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The court said an employee does not automatically lose their right to claim unfair dismissal simply because they are the one who submitted a resignation letter. In some circumstances, the resignation can amount to constructive dismissal.

“Constructive dismissal occurs where an employer’s actions seriously breach the employment relationship, making it unreasonable for an employee to continue working. This may include conduct that destroys the trust and confidence between an employer and employee,” Justice Ocharo Kebira said.

Importantly, the court found that constructive dismissal does not have to be caused by one dramatic incident. Several actions that may appear less serious when considered separately can, when taken together, become serious enough to force an employee out.

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“The conduct must be objectively serious enough to make continued employment intolerable, and there must be a clear connection between that conduct and the employee’s decision to resign,” he added.

An employee seeking to rely on constructive dismissal must also show that they genuinely resigned because of the employer’s conduct. The court noted that an employee should not wait too long after a serious breach while continuing to accept the employment relationship as normal.

The ruling further emphasised that employees do not have to remain silent when workplace problems arise. Complaining about unfair treatment and seeking an internal solution can help show that an employee did not simply accept the conduct before eventually resigning.

In addition, Justice Ocharo Kebira decided after considering a dispute involving a former branch manager who complained of alleged humiliation, a change in her reporting structure, disciplinary action and the handling of her workplace complaints.

She later resigned and described her departure as constructive dismissal after another request connected to her employment was declined. Her employer argued that she had chosen to leave voluntarily.

The court, however, considered the different incidents together rather than looking at each one in isolation. It found that the employee had repeatedly raised her concerns before resigning and had not simply accepted the treatment.

📰 Source: Kenyans.co.ke