If an employee is subjected to a discriminatory demotion, can they refuse to work?

An interesting question and one that the Court of Appeal has answered with a responding no in the recent case of Rochford v WNS Global Services.

The facts of the case are as follows:

The Claimant in this case, Mr Rochford, had suffered from a serious back condition and was off work for almost a year following surgery. It was agreed by everybody that his condition amounted to a disability under the Equality Act 2010.

Whilst Mr Rochford was off work, discussions took place about his return to work. The Company was not prepared to allow him to immediately return to his Senior Vice President role, suggesting that initially on his return he would have responsibility for the manufacturing sector only. No indication was given of when his full role would recommence.

Mr Rochford was not prepared to return to work on any basis other than in his full Senior Vice President role and so when he returned to work in January 2013, he did no actual work. Instead, Mr Rochford raised an internal grievance, stating that the way he had been treated constituted discrimination.

The Company was not happy that Mr Rochford was refusing to work and started disciplinary proceedings which ultimately led to Mr Rochford’s summary dismissal for misconduct.

Mr Rochford brought a claim in the Employment Tribunal. His main arguments were that he had suffered disability discrimination and been unfairly dismissed.

The original Employment Tribunal found that although the Company had not followed the correct process to dismiss him, and his dismissal was therefore procedurally unfair, the fact that he had refused to return to work at all was potential gross misconduct which justified the Company’s decision to dismiss him. His dismissal was therefore only procedurally unfair.

They did find, that his treatment amounted to “disability-related “discrimination because Mr Rochford had been treated unfavourably for reasons arising from his disability when the Company demoted him and failed to give him any indication of when he could return to his normal position. However, this did not justify his subsequent actions.
Mr Rochford appealed the Tribunal’s decision, largely to argue that his actions should not have been seen as gross misconduct and in particular that it was wrong to say that it was reasonable for the Company to dismiss him for his refusal to work when it was the Company’s discrimination against him in the first place which had prevented him from working in his full role.

Whilst it might seem unfair that a company can discriminate against an employee and then discipline them for reacting to that, the Court of Appeal rejected Mr Rochford’s arguments. The Court of Appeal found that Mr Rochford’s refusal to work was itself a breach of contract and misconduct and an action the Company was entitled to treat in the same way as with all employees. The Court of Appeal made it clear that “it is not the law that an employee who is the victim of a wrong can in all circumstances simply refuse to do any further work unless and until that wrong is remedied. He may in some circumstances have to seek his remedy in the courts”.

His complaint was that he was not being allowed to do some of his normal tasks; however, the tasks he was being asked to do were still part of his contract and the Company was entitled to ask him to do those tasks.

In reality, instead of refusing to work, the Claimant could have done one of a number of things. He could have worked under protest and continued with the grievance process to try and convince the Company to change their approach, he could have looked at the legal claims he could bring whilst employed or ultimately he could have resigned and claimed constructive dismissal based on his treatment.

This case is a salutary warning to employees that they should not presume that if they are treated badly or even illegally they can act in breach of their own employment contract in response. In many circumstances they will remain bound by the terms of that employment contract and will need to consider all their options for addressing the wrong treatment they’ve suffered. For employers, it gives some reassurance that even if mistakes are made in how a situation is handled with an employee, the company may still be justified in taking disciplinary action where appropriate against the employee involved. Of course, however, as a matter of good practice employers should avoid the discriminatory behavior in the first place to meet their obligations under the Equality Act 2010.

For those wishing to read the full judgment which is relatively short, it can be found here.

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