Can a victim of discrimination refuse to work?

Does discriminatory treatment permit an employee to refuse work?

This was the question that was explored by the Court of Appeal in the case of Rochford v WND Global Services (UK) Ltd.

Facts

In this case, the employee worked in sales covering numerous business sectors. He suffered from a serious back condition and had surgery, which resulted in him being absent from work for almost a year.

The employer suggested that he return to work in a reduced role with responsibility over just one sector. The employee was not happy to return to work unless he resumed all his duties. When he did return to work, he refused to do any work.

He raised a grievance, arguing that there had been disability discrimination. Disciplinary proceedings were taken against him, which led to him being dismissed for gross misconduct.

He lodged a claim at an Employment Tribunal arguing he had been subjected to disability discrimination, victimisation, unfair dismissal and wrongful dismissal.

Decision by the Employment Tribunal

The Employment Tribunal (ET) allowed his claim for disability discrimination in part, but they dismissed the rest.

The ET concluded that the employer treated the employee unfavourably for reasons arising from his disability when they demoted him and they did not notify him when he could return to his original position. They said that the dismissal was procedurally unfair, but his refusal to work constituted gross misconduct which justified dismissal. As such, he was only entitled to very modest compensation.

He appealed. When the Employment Appeal Tribunal dismissed the appeal, he appealed to the Court of Appeal.

Decision by the Court of Appeal

The Court of Appeal dismissed the appeal and said ‘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’. In other words, being the victim of discrimination does not give the employee an absolute right to just refuse to work.

Remember, cases are decided on their own facts. To explore any of the areas touched on in this case, contact your Employment Law Adviser.

Director of Legal Services

James Tamm

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