##The background

The Claimant suffered from a longstanding back condition leading to surgery, following which he was off work. An occupational health report recommended a phased return to work. The Respondent took the view that he should return to work carrying out a limited part of his role. The Claimant disagreed stating it would be a demotion. The Respondent failed to inform the employee he would be working up to his previous role. He refused to accept the limited role (or work at all) and was warned that such a refusal may lead to dismissal. He maintained his stance following his return to work and was eventually dismissed. He made claims for unfair and wrongful dismissal contending the he was dismissed for discrimination arising from a disability.

##Tribunal decision

The ET held that:

1. The reason for dismissal was the Claimant’s conduct namely his refusal to work;
2. Dismissal for that reason was procedurally unfair, however;
3. Had a fair process been followed dismissal would have been in the range of reasonable responses;
4. The refusal by a senior employee receiving full pay to do any work, despite warnings, amounted to gross misconduct.

The Clamant appealed. The EAT dismissed the appeal. The proper course for the Claimant to take in those circumstance was to resign and claim constructive dismissal or possibly to have worked under protest.

##What this means for you

Refusal to work, in most cases, will result in a breach of the contract. Whilst not explaining a phased return could be discrimination, the insubordination of the Claimant was a fair reason to dismiss in this case.

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