The respondent is a global supplier of business process management services. The appellant was employed in a high-level VSL (‘Vertical Sales Lead’) role and had responsibility for several business sectors and receiving an annual salary of £90,000, together with a company car and a sizeable bonus.

The appellant suffered from acute back problems which, under the Equality Act 2010 (equivalent to Disability Discrimination Act 1995, which continues to apply in NI), amounted to a disability. He underwent surgery and was off work for almost a year thereafter. The respondent was reluctant to allow him to return to his full VSL role instantaneously and instead suggested a gradual return to work, having responsibility solely for the manufacturing sector.  The appellant refused to return on this basis. He lodged an internal grievance and disciplinary proceedings were commenced, subsequently leading to summary dismissal for misconduct.

The appellant lodged proceedings for disability discrimination, victimisation, unfair dismissal and wrongful dismissal. The Employment Judge allowed the claim for disability discrimination in part only, in that disability-related discrimination of the kind identified in section 15 of the 2010 Act was established, yet dismissed the remainder of his claim, including claims that his dismissal was unlawfully discriminatory and that the respondent had failed to make reasonable adjustments.

The Tribunal acknowledged the appellant's 'demotion' was of a limited nature, since he suffered no loss of money or benefits, or indeed of his Senior Vice President status, and consisted only in the removal, said to be of temporary nature, of a large part of his responsibilities. The Tribunal rejected the claim that the dismissal itself constituted disability-related discrimination within the meaning of section 15 and rejected the claim that the dismissal was because of something arising in consequence of his disability, stating it was clearly a dismissal for misconduct:

"The Tribunal's view is that the claimant's continued refusal to undertake work in the manufacturing sector, and refusal to do anything about the manufacturing target client list [that was a particular task which he had been asked to do] are matters which do constitute misconduct."

The Court of Appeal was tasked with examining whether it was reasonable for the employer to dismiss in all the circumstances, including its own prior discriminatory failures.

The appellant argued the requirement that he return to a much more limited version of his previous role was a requirement that he acquiesce in an act of discrimination against him, and that this was wrong in principle. The Court did not accept this, highlighting it was work within the scope of his contractual duties and work that he was fit to do.

Dismissing the appeal, the Court said the fact that the appellant should have been allowed to return to his old role in full was not a sufficient reason for him to refuse to perform any part of that role - it did not give him an absolute right to refuse to work:

“The fact that one party to a contract has committed a prior wrong against the other, whether in the form of a breach of contract or tort or any other wrong, does not constitute an automatic solvent of his or her continuing obligations, and there is nothing special about discrimination in this regard. 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... I can well understand why the Appellant might prefer not to resign and claim constructive dismissal: he might reasonably prefer to have a job rather than a tribunal claim, especially as he could not be certain that the Respondent's conduct would be held to be unlawful, or, even if it was to be, sufficiently grave to constitute a repudiatory breach. However, I do not see anything objectionable in principle in the suggestion that he could have remained at work and done what was, as the Tribunal found, reasonably asked of him, while, if he still felt that his continuing demotion and/or, the uncertainty as to its duration was unlawfully discriminatory, bringing Employment Tribunal proceedings. As I have already said, 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."
http://www.bailii.org/ew/cases/EWCA/Civ/2017/2205.html