It was held that an employee that was subject to a discriminatory demotion cannot refuse to work in protest in the case of Rochford v WNS Global Services.
Background
This case concerned an employee, Mr Rochford who was a Senior Vice President. Mr Rochford, the Claimant, suffered from a longstanding back condition which lead to surgery and almost a year off work. An occupational health assessment recommended a phased return to work. His employer took the view that he should return carrying out a limited part of his role on full pay. Mr Rochford disagreed with this decision and considered it to be a demotion. The employer warned Mr Rochford that the refusal to work may lead to dismissal. Mr Rochford maintained his position by refusing to work and was eventually dismissed from his employment. He brought claims of unfair dismissal and that he was dismissed for discrimination arising from disability.
Employment Tribunal’s decision
The Employment Tribunal held that:
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The reason for dismissal related to the claimant’s conduct, namely his refusal to do anything which was within his competence and job description;
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Dismissal for that reason was procedurally unfair, however:
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Had a fair process been followed dismissal would have been within the range of reasonable responses “given that we have found gross misconduct”;
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The refusal by this senior employee receiving full pay to do any work whatsoever, despite a number of warnings, amounted to gross misconduct.
Mr Rochford appealed.
Appeal decision
The Court of Appeal was satisfied that it was right to find that the dismissal fell within the range of reasonable responses available to the employer. The Claimant was not dismissed because of a loss of trust and confidence due to the demotion, but because of his conduct in his refusal to carry out any duties.
The Court noted “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”.
The importance of this case and the point that employers need to be mindful of is that the employee was demoted for discriminatory reasons. However, the refusal to work can be grounds for dismissal. This is very much a case of two wrongs don’t make a right. Instead, in this case, the employee’s options were to resign and bring a constructive dismissal claim or work under protest.
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