What happens if an employee refuses to work in protest at discriminatory treatment?

If an employee is subjected to a discriminatory demotion, can they refuse to work? No is the answer given in the case of Rochford v WNS Global Services – which is very much a case of two wrongs don't make a right.

The Court of Appeal has decided that an employer's discriminatory conduct towards a disabled employee following an extended period of sick leave did not entitle the employee to refuse allocated work. A misconduct dismissal on the grounds of insubordination may be substantively fair even if the refusal to work is in response to discrimination.

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Background to the case

The employee held a senior role in the business. He had the status of Senior Vice President with a salary of £90,000 per year, plus car allowance and bonus.

The employee had the misfortune to suffer from a serious back condition which meant that, following surgery in 2012, he was off work for almost a year.

Towards the second half of 2012 there were discussions about his return to work.

His employer was not prepared to allow him to return to his full role but proposed that he take up a position with limited responsibilities. This was in effect a demotion.

The employer believed that the employee needed to get back up to speed and to prove himself after such a long absence.

The employer did not provide any indication of when the employee could go back to full duties.

The employee was not prepared to return to work on the restricted basis. Notwithstanding that, the employee formally returned to work on 16 January 2013 but did no actual work.

The employee initiated an internal grievance, complaining about how he had been treated and saying that it constituted discrimination. The grievance was not upheld.

The employer regarded this stance as unacceptable and disciplinary proceedings were initiated. This led to the employee being dismissed for misconduct in April 2013.

At Employment Tribunal and on appeal to the EAT, it was accepted that the employee's 'demotion', combined with his employer's failure to indicate when he would return to his 'full' role, constituted unlawful discrimination 'arising from' his disability.

However, it was also found that his subsequent dismissal for insubordination was substantively fair (even if executed unfairly on procedural grounds).

Comment

Although it was found that the employee had been discriminated against, as mentioned above this was very much a case of two wrongs do not make a right.

The employee was not entitled to react to his discriminatory treatment by doing no work for the employer and his dismissal was held to be substantively fair.

Although the employer believed it had a justifiable reason for treating the employee in the way it did so; the case also highlights the sensitivity that employers need to show when a potentially disabled employee is returning from work following a significant period of absence.

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