Thu 01 Feb 2018

Can an employee who refuses to work following a discriminatory demotion be fairly dismissed?

The Court of Appeal considers the misconduct dismissal of an employee who refused to work following a discriminatory demotion.

In Rochford v WNS Global Ltd Mr Rochford was absent from work for about a year because of a back condition. He was employed as a vertical sales lead ("VSL") holding the position of Senior Vice President.   On his return to work his employer would not allow him to immediately take up his VSL role, instead proposing a lessor role.  Mr Rochford was not prepared to return to work on any basis other than as a VSL.  He therefore refused to undertake any work and initiated a grievance complaining about his treatment claiming it was discriminatory.  His employer regarded this stance as unacceptable and initiated disciplinary proceedings which resulted in Mr Rochford's summary dismissal.

Mr Rochford made claims of discrimination, victimisation, unfair dismissal and wrongful dismissal.  The Tribunal upheld a claim of discrimination arising from his disability - the unfavourable treatment in question, being the demotion.  Other discrimination claims were dismissed.  The unfair dismissal claim was found to be procedurally unfair and the refusal to return to work was held to be gross misconduct which would have justified dismissal had a fair procedure been followed.  The wrongful dismissal claim was also unsuccessful.  Mr Rochford then made an unsuccessful appeal to the EAT against the finding he had been guilty of gross misconduct and the matter then reached the Court of Appeal.

Before the Court of Appeal Mr Rochford argued that it was an error of law for the Tribunal to have found that it was reasonable for the employer to dismiss for a refusal to work when that refusal was in response to an act of discrimination (the demotion).  It was argued on his behalf that the requirement to return to a lessor role was a requirement to acquiesce in an act of discrimination against him, which was wrong in principle. 

The Court of Appeal however took the view that this was simply a question of what conduct was reasonable on the part of both Mr Rochford and his employer.  The Court pointed out that "it is not the law that an employee who is the victim of a wrong can in all the circumstances simply refuse to do any further work unless and until that wrong is remedied".  The Court also pointed out that Mr Rochford could have continued to work carrying out the demoted duties while bringing Tribunal proceedings regarding the demotion. 

Employees who believe they have been discriminated against should remember that such claims can be brought while their employment continues.  As the Court pointed out, it may well be preferable for an employee to have a job and raise a Tribunal claim rather than having a Tribunal claim and no job.  This was a case where the remedy for Mr Rochford lay with a claim to an Employment Tribunal rather than in taking matters into his own hands by refusing to work. 

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