If an employee is subjected to a discriminatory demotion, can he refuse to work?
No, held the Court of Appeal in Rochford v WNS Global Services. The employee, Mr Rochford, was a Senior Vice President. He had been off work for almost a year due to a back condition. On his return, the employer unjustifiably refused to allow him to work his full role, allocating him lesser duties on full pay, with no indication of when his full role would recommence. The tribunal found this to be discrimination related to disability.
The employee then refused to do any work and was subsequently dismissed for misconduct. Although the dismissal was procedurally an unfair dismissal, it was found not to be discriminatory. The Court of Appeal rejected an argument to the effect that the employer was wrong to have dismissed the employee for refusing to work when its discrimination had prevented him from working in his full role. The employee's refusal to do work within the scope of his duties was itself a breach of contract, and misconduct; the tribunal's findings on the dismissal were permissible.
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." An employee in such a position could resign, work under protest, or bring tribunal proceedings.
Thanks to Ed McFarlane of Deminos HR for preparing this case summary