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Dismissal for refusing to work does not amount to discrimination

View profile for Chris Amys
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In the case of Rochford v WNS Global Services, Mr Rochford was employed by WNS Global Services (WNS) as a Vertical Sales Lead from July 2011 until the termination of his employment on 9th April 2013. Mr Rochford was a senior member of staff and received £90,000 a year plus car allowance and bonus.

Mr Rochford suffers from a serious back condition and therefore satisfied the definition of disability in the Equality Act 2010. He had surgery on his back in February 2012 and was signed off work for almost a year to recover.

WNS stated to Mr Rochford towards the end of his recovery that when he returns to work, the Company would not permit him to return to his original role because the business believed he needed to get back up to speed and prove himself after a long absence from the workplace.

As a result, when Mr Rochford was fit to return to work, he simply refused to work and raised a grievance against WNS stating that the Company’s conduct amounted to discrimination. Due to Mr Rochford’s refusal to work, WNS initiated disciplinary proceedings, which resulted in his dismissal for misconduct.

Mr Rochford subsequently brought claims in the Employment Tribunal for disability discrimination, victimisation, unfair dismissal and wrongful dismissal. The only successful claims were for disability discrimination and unfair dismissal, but in part only and extremely limited in compensation, mainly in part due to Mr Rochford’s contributing conduct.

The claim was appealed, and when it recently reached the Court of Appeal, the key question was whether an employee can refuse to work when they are subjected to discriminatory treatment.

It is accepted an employee will sometimes be justified in refusing to work for their employer, and therefore it would not be reasonable for the employer to dismiss the employee for doing so. However, the question of whether an employee is permitted to do this depends on the facts.

The Court of Appeal held that it was reasonable for WNS to ask Mr Rochford to undertake work which was within the scope of his contractual duties. Subsequently Mr Rochford’s refusal to undertake these duties amounted to a breach of contract, and therefore WNS was entitled to treat this as misconduct.

This case is an important reminder to employers about the implications of how employees are treated when they return from long-term sickness absence and have a disability. It is without doubt that from a procedural point of view, Mr Rochford’s dismissal was unfair dismissal, although WNS had a lawful reason to dismiss, namely misconduct, which was not held to be discriminatory. The specific facts of the case seem to have been the saving grace for WNS, but another employer may not be so lucky.

It would have been interesting to see what would have happened if Mr Rochford decided to work under protest, or if he resigned as a result of the unsatisfactory grievance outcome, or simply brought tribunal proceedings for disability discrimination whilst remaining at the Company as an employee. Arguably such a claim could have succeeded and is therefore an warning to employers to treat all concerns raised by employees seriously, especially concerns raised by those who have a disability and are returning to work from long-term sickness absence.

If you require any advice or assistance, in particular with long-term absence and disabilities, please do not hesitate to contact Sally Morris at sally.morris@mfgsolicitors.com or on 01905 610410.

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