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Employees can potentially be demoted if they have been on long term sick leave and return to work but unable to complete the same level of work as before. However, this can be deemed as discriminatory depending on the circumstances.
If the employee believes this demotion is discriminatory, they may refuse to work, either not attending their place of work or not effectively fulfilling the new role.
Discriminatory demotion
A situation arose like this which went to an Employment Tribunal and the Court of Appeal. In Rochford v WNS Global Services, the employee, Mr Rochford, was a Senior Vice President who had been off work for almost a year due to a back condition.
Upon 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.
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.
Refusal to work
Paul Burton, Head of Frettens' Employment Team, says “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.”
However , it is important to include a comment from the court, noting that "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."
Paul concludes “The crux of this case, and the point that employers should be wary of, is that the employer demoted the member of staff for unjust and discriminatory reasons. However, refusing to work is certainly grounds for dismissal. The viable options for an employee in a position like this are to resign, work under protest, or bring tribunal proceedings.”
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
