Are employees expected to work through discriminatory treatment?

06 March 2018

The recent case of Rochford v WNS Global Services (UK) Ltd [2017] EWCA Civ 2205, the Court of Appeal has held that an employee can be expected to work through discriminatory treatment in certain circumstances.

Are employees expected to work through discriminatory treatment?

Mr Rochford was employed as a high-level Vertical Sales Lead with responsibility for several business sectors. He received an annual salary of £90,000 with a company car and an annual bonus.

The employee suffered from serious back problems, which amounted to a disability under the Equality Act 2010 (GB equivalent to the Disability Discrimination Act 1995 in Northern Ireland). After a year’s absence from work following surgery, the employer was reluctant to allow Mr Rochford to return to his full role immediately and suggested a phased return to work. In doing so, they reduced Mr Rochford’s workload and did not provide him with a date upon which his full workload would be reinstated. Mr Rochford refused to return to work on this basis and lodged an internal grievance (which was not upheld). The employer commenced disciplinary proceedings and summarily dismissed the Claimant on the grounds of misconduct.

Mr Rochford lodged proceedings for unfair dismissal, disability discrimination and victimisation. In the first instance, it was accepted that Mr Rochford’s ‘demotion’, combined with the employer’s failure to indicate when he would return to his ‘full’ role, constituted unlawful discrimination ‘arising from’ his disability. However, the Employment Tribunal dismissed the remainder of his claim, including claims that his dismissal was unlawfully discriminatory. The Tribunal also held that the employer had not failed to make reasonable adjustments in managing his return to work.

Whilst the Tribunal accepted that Mr Rochford was subjected to a reduction in his workload, this ‘demotion’ was minimal, given that he suffered no loss of salary or benefits, nor did he lose his Senior Vice President status. The Tribunal rejected that the dismissal constituted disability-related discrimination and found that the work he had been asked to do upon his return was “very clearly within the scope of his contractual duties”. Mr Rochford appealed to the Employment Appeal Tribunal (EAT).

The EAT dismissed his appeal and it was subsequently heard before the Court of Appeal in England and Wales.

The Court of Appeal dismissed the appeal and determined that the dismissal was clearly for misconduct. In reaching this decision, Lord Justice Underhill 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.”

However, the Court did emphasise that the reasonableness of an employer’s instructions in such a situation will turn on the facts of each case, stating “acts of unlawful discrimination are not uniquely heinous; like other wrongs, they come in all shapes and sizes and how it is reasonable to respond to them in any given case is a matter for the assessment of the Tribunal.”

In doing so, the Court of Appeal asserted that the proper course for an employee in Mr Rochford’s position to take, would be to either: work under protest; resign and claim constructive dismissal; or to bring an employment tribunal claim whilst remaining in work.

The Court of Appeal held that whilst the employer in this case had been trying to do the right thing in requiring a gradual return to work, it is important that in such circumstances, employers engage with the returning employee, particularly after a long period of absence, to ensure a smooth return to work.  Employers should take care when considering making any changes to a disabled employee’s role on their return to work. Any reasonable adjustments should be made in consultation with the employee in question in order to ensure they are consistent with the employee’s contract of employment.

Maxine Orr is a Partner specialising in Employment Law in Worthingtons Commercial Solicitors, Belfast.

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