Can an employee refuse to work in protest following acts of discrimination?
Mr Rochford suffered from a serious back condition and was disabled, as a result of which he was off work following surgery for almost a year. On his return, his employer proposed he would not return to his full role immediately and would initially have a more limited role. The intention that Mr Rochford was to work back up to his previous role was not communicated to him, however the limited role was still within his competence and job description.
Whilst Mr Rochford formally returned to work, he refused to do any actual work, raising a grievance claiming discrimination (which was not upheld). His employer did not accept his refusal to work and, after warning that his continued stance may lead to his dismissal, disciplinary proceedings were initiated and he was dismissed for gross misconduct.
The Employment Tribunal and Employment Appeal Tribunal accepted that as the employer had not given Mr Rochford any clear indication of when he would return to work in his substantive position, and had essentially demoted him, this treatment constituted unlawful discrimination ‘arising from’ his disability. Mr Rochford argued that he should have therefore been able to rely on his statutory right not to be discriminated against and could refuse to work.
The tribunals rejected this argument. They decided that Mr Rochford was not entitled to simply refuse to do any work, draw his full pay after a year off sick, and allow the disciplinary process to unfold having been warned of the consequences of his stand.
He had alternative actions open to him; he could resign and bring a constructive dismissal claim, or work under protest and bring a claim for discrimination.
The Court of Appeal agreed that it was reasonable for the employer to dismiss him for his refusal to work, even when that refusal was itself a reasonable response to the employer’s refusal to allow him to return to his full previous role (which did constitute unlawful discrimination). Mr Rochford was not entitled to refuse to do anything at all, notwithstanding that he was fit to work and receiving full pay. The Court of Appeal agreed that such a position was unacceptable, whether or not Mr Rochford was right on the issue in dispute.
Hooray for some common sense, but employers should be cautious in interpreting this decision. It is well settled that an employee may sometimes be justified in refusing to work, for example if an employee is being asked to carry out work that is not within their capabilities or contract, in which case an employer may be unreasonable if they dismiss them for not doing so.
However, the case makes it clear that an employer cannot simply do as they wish. We would encourage employers to discuss the expectations with employees’ returning to work and arrange a full return to work plan from the outset. Any areas of dispute can then hopefully be resolved and, if necessary, further medical advice obtained to clarify any area of dispute regarding an employee’s ability to undertake certain duties
For more information on the issues raised above or any other employment related matter, please contact a member of the Employment Team.