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An employee was not entitled to refuse to work despite being subjected to a discriminatory demotion, the Court of Appeal found in Rochford v WNS Global Services.
Mr Rochford had a back injury and had been off work for almost a year as a result of his condition. Upon his return, his employer refused to allow him to work his full role and instead narrowed his role and failed to indicate when his full role would restart. The tribunal held that this constituted unlawful discrimination arising from his disability.
As a result of the requirement to work a narrowed role, Mr Rochford, refused to do any work and was subsequently dismissed for misconduct on the grounds of insubordination. The dismissal, although procedurally unfair, was found not to be discriminatory.
The Court of Appeal rejected an argument that the employer was wrong to have dismissed Mr Rochford for refusing to work when its discrimination had prevented him from working in his full role. The revised scope of work was consistent with both Mr Rochford’s contract and abilities and as a result of his refusal to do work amounted to a breach of contract.
The Court of Appeal stated, “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”. Other options open to an employee in this position would be to resign, work under protest or consider bringing Tribunal proceedings for discrimination whilst still in employment.
The decision should not be seen by employers as facilitating dismissal where an employee raises discrimination concerns. Further, it will always be a question of fact and degree when determining whether an employee is justified in refusing to work. However, what this decision demonstrates is that where an employee refuses to work due to discrimination this may be treated as a disciplinary issue, and potentially gross misconduct.
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