Good afternoon, this weeks’ case is a classic example of miscommunication and concerns disability discrimination and gross misconduct.
The question this week is:
If an employee isn’t told their reduced role is part of a phased return to work are they being discriminated against?
Mr Rochford, the Claimant had been a Senior Vice President at WNS Global Services, the Respondent. His role included sales and he had been in it for four years. The Claimant had a long standing back condition which resulted in surgery. After 8 months of recuperation and occupational health sessions the Respondent received a report suggesting the Claimant could start a phased return to work.
The Respondent suggested the Claimant should return to work doing a limited part of his job, they failed to inform the Claimant that this would only be temporary as part of a phased return. The Claimant did not want to return thinking that this limited role was a demotion. The Claimant continued to refuse to return to work and was dismissed for gross misconduct arising from insubordination. The Claimant, believing he had been demoted and dismissed due to being off work bought unfair dismissal and disability discrimination claims to Tribunal.
The ET ruled that the Respondent had discriminated against the Claimant by failing to explain his phased return to work and that the dismissal had been procedurally unfair due to the Claimant’s grievance against his demotion. However the ET also stated that the dismissal was substantively fair as the Claimant was capable of performing the role given to him and had refused to do any work whatsoever.
The Claimant appealed to the EAT but the appeal was rejected. The EAT adjudged that the ET was correct in its reasoning and that despite being procedurally unfair the dismissal was substantively fair meaning Polkey reduction would be applied to the Tribunal award.
The takeaway point
Yes, if an Employee is not told their role has only been reduced temporarily then they will think they have been discriminated against. In this case the Claimant was undone by his refusal to work had he resigned and bought a constructive dismissal claim the outcome could have resulted in an even larger Tribunal award. From a HR perspective always make sure phased returns to work are fully explained to employees as otherwise you could find yourself in a similar situation to the above case.
To read more disability discrimination cases click here.