Rochford v WNS Global Services (UK) Limited and others [2017] EWCA Civ 2205

Why care?

The Court of Appeal confirmed that, even where an employee has been discriminated against in the past, it does not mean that he is entitled to refuse to work and if he does, he can be dismissed for misconduct.

Discrimination arising from disability arises where A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show the treatment is a proportionate means of achieving a legitimate aim – for example, a decision to dismiss an employee who has a poor absence record due to their disability, unless the decision can be objectively justified.

The case

The Claimant was a senior employee who had a longstanding back condition, for which he had surgery in February 2012. He was off work until October 2012, when an Occupational Heath report recommended a phased return. The Respondent said that he should return to work carrying out a limited part of his role. The Claimant said this would be a demotion. The Respondent did not say that the intent was that he would work up to his full role, and failed to tell him when he would be permitted to carry out his full role again. He was warned that if he refused the limited role, he might be dismissed. He returned to work in January 2013, but refused to work in the limited role. His grievance alleging disability discrimination was not upheld, and following a disciplinary procedure he was dismissed without notice for “a fundamental breach of contract and… a gross act of insubordination” on 9 April 2013.

The Claimant brought five complaints of discrimination arising from disability, and an unfair dismissal claim. The Employment Tribunal found that the Respondent’s failure to explain the intentions behind the limited role and the phased return plan was discrimination arising from his disability. This did not, however, justify him refusing to do any work whatsoever – he still had a duty to perform those parts of his role. His dismissal was therefore for a fair reason (although procedurally unfair on the facts).

The Employment Appeal Tribunal agreed with the Employment Tribunal.

The Court of Appeal also agreed, noting that whether or not an employee is entitled to refuse to work will be a matter of facts and degree in each case. Here, the employer had arranged a phased return for the Claimant’s benefit with the intent of supporting his return to full duties, and the limited role that he was expected to fulfil was within both his contract and his abilities.

The Claimant’s refusal to work was a breach of contract, and his dismissal was not discriminatory. It is established contract law that where one party to a contract has committed a wrong against the other, it does not automatically mean the other party is released from all his contractual obligations – this applies as much to discrimination as to any other act.

Rather than refusing to work, the Claimant could have resigned, claiming constructive dismissal, or could have worked under protest while bringing a claim for breach of contract.

What to take away

The Claimant was not entitled to rely on what was found to be discriminatory treatment as a reason to refuse to work, but this will be dependent on the details of each case and should not be taken as a green light to dismiss all employees refusing to work. There may be circumstances, for example around health and safety, where an employee may be justified in their refusal.

The employer in this case had good intentions – the phased return was planned to help the employee and he remained on full pay throughout. However, he did not know that it was intended as a temporary measure and these communication issues resulted in the finding of discrimination arising from disability. Employers considering reasonable adjustments for disabled employees or phased returns from illness should discuss the plans with the individual involved, listen to their views and ensure that any changes are consistent with the employment contract and the employee’s current abilities.