Refusing to work in protest

16 February 2018

The Court of Appeal has held that an employer’s discriminatory conduct towards a disabled employee did not entitle the employee to refuse to carry out the work provided.

Mr Rochford was Senior Vice President of a WNS Global Services. He was off work for almost a year with recovering from back surgery as a result of a back condition (which was a disability). When he returned, his employer decided to narrow his role (on full pay) and failed to say when he would go back to full duties. Mr Rochford refused to work, and raised a grievance alleging disability discrimination. He was subsequently summarily dismissed for misconduct on the grounds of insubordination following an internal disciplinary procedure. 

It was accepted by the tribunal, EAT and the Court of Appeal that the combination “demotion” and the employer’s failure to indicate when he would return to his full role amounted to discrimination arising from a disability.

However, Mr Rochford’s dismissal for insubordination was found to be substantively fair (although executed unfairly from a procedural view). The Court of Appeal confirmed that whether an individual is justified in refusing to work is a question of fact and degree in each case. Here, the Employer’s actions were not deliberate or in bad faith but were aimed at supporting his return to work. The revised scope of the work was also consistent with Mr Rochford’s contract and abilities, and so although his treatment had been discriminatory, he was not entitled to do nothing until his employer relented to his point of view. 

This decision confirms that an employee may sometimes be justified in refusing to return to work – albeit the question of “fact and degree” meant that it was not the case here. Employers should be mindful of approaching disabled employees’ return to work with care, and ensure that any reasonable adjustments are discussed openly and consistent with their contract and abilities.

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