“Your Employer Asked You to Resign Instead of Firing You?” What Kenyan Law Really Says
This is one of the most common and most misunderstood workplace situations in Kenya today.
An employee is called into a meeting.
No prior warning sometimes. No formal hearing. No clear disciplinary process.
Then comes the statement:
“It would be better if you resign.”
Or even more direct:
“We can either terminate you or you resign.”
On paper, it looks like a choice.
In reality, it often raises serious legal and ethical questions.
So what is really going on—and what does Kenyan law say?
1. What Employers Are Really Doing: “Playing Safe”
In many cases, employers are not asking you to resign because it is “better for you.”
They are doing it because it is legally and financially safer for them.
Here’s why:
If they fire you (termination):
They may be required to:
- Prove a valid reason (performance, misconduct, redundancy)
- Follow due process (hearings, warnings, documentation)
- Pay notice, severance (in some cases), and dues
- Risk a claim at the Employment and Labour Relations Court
If you resign:
- It appears voluntary
- They avoid “termination liability”
- It reduces risk of unfair dismissal claims
- It simplifies HR documentation
So in many workplaces, asking for resignation is a risk-management strategy, not a fairness strategy.
But here is the legal reality:
If the resignation is forced, it may still be illegal.
2. What Kenyan Law Calls This: Constructive Dismissal
Kenyan law does not always call this “forced resignation” in plain terms, but courts recognize it under a concept called:
Constructive dismissal
This happens when:
- The employer’s actions make working conditions unbearable, OR
- The employee is pressured to resign instead of being formally terminated
Legally, the resignation is treated as a termination initiated by the employer, not the employee.
Courts in Kenya have consistently held that if resignation is not truly voluntary, it may amount to unfair termination.
The Key Legal Test in Kenya
For a case to be considered constructive dismissal, courts generally look at:
- Was there a fundamental breach by the employer?
(e.g., harassment, demotion, non-payment, procedural unfairness) - Was resignation a direct result of that breach?
- Did the employee resign because they had no real choice?
- Was the resignation done within a reasonable time?
If the answer points to pressure or coercion, the law may treat it as dismissal—even if the employee signed the resignation letter.
3. Case Scenario
Case Study: “Mary in a Private Firm”
Mary works in a mid-sized company in Nairobi as an HR assistant.
After raising concerns about payroll delays and reporting issues, her manager calls her in.
She is told:
- “Your performance is not aligning with expectations”
- “We can proceed with termination or you resign today”
- “It will be better for your record if you resign”
Mary is confused and pressured. No prior warning letters exist. No disciplinary hearing is conducted.
She resigns the same day.
What the law sees in this situation
Even though Mary resigned, a court may later find:
- There was no proper disciplinary process
- She was given a “forced choice”
- The resignation was not truly voluntary
This can be treated as unfair termination disguised as resignation.
4. Why Employers Push Resignation Instead of Termination
From a legal and HR perspective, employers may be trying to:
1. Avoid legal exposure
Termination without due process can be expensive in court.
2. Avoid reputational damage
“Resigned” sounds cleaner than “fired.”
3. Reduce financial obligations
Severance and compensation risks may be lower.
4. Control documentation
A resignation letter reduces the employer’s burden of justification.
But here is the important truth:
A resignation letter does not automatically make the process legal.
If pressure, coercion, or threats are involved, the legality can be challenged.
5. What Employees Often Don’t Realize
Many employees think:
- “If I resign, the matter is over.”
- “I will avoid conflict or blacklisting.”
- “It is better for my CV.”
But legally:
A forced resignation can still be challenged in court
Kenyan courts have recognized that resignation under pressure can still amount to termination in law.
Meaning:
You may still have a valid claim for:
- Unfair dismissal
- Compensation
- Damages for procedural violations
6. What You Should Do If This Happens
If you ever find yourself in this situation:
1. Do not resign immediately under pressure
Ask for time to think.
2. Request written reasons
Ask the employer to provide:
- Grounds for termination consideration
- Any disciplinary records
3. Document everything
Emails, meeting notes, WhatsApp messages.
4. Seek clarification in writing
Ask: “Is this a disciplinary process or voluntary resignation request?”
5. Consult a labour lawyer or HR expert
Before signing anything.
7. The Bigger Lesson for Employees and Employers
For employers:
If you need someone out, the lawful path is not pressure—it is process.
Proper disciplinary procedure protects both sides.
Trying to “manage risk” through forced resignation can create:
- Legal liability
- Constructive dismissal claims
- Court compensation orders
For employees:
A resignation request is not always a neutral exit.
Sometimes, it is a soft termination strategy.
And the law looks beyond the paper—it looks at the circumstances.
Final Thought
In Kenyan workplaces, “resign or be fired” is not just an HR conversation.
It is a legal threshold.
Because once resignation is influenced by pressure, fear, or procedural shortcuts, the law may interpret it differently from what the employer intended.