Brian Rochford v WNS Global Services (Court of Appeal)

The Court of Appeal has decided that an employer's discriminatory conduct towards a disabled employee following an extended period of sick leave did not entitle the employee to refuse allocated work. A misconduct dismissal on the grounds of insubordination may be substantively fair even if the refusal to work is in response to discrimination.

Mr Rochford had a back injury, and required almost a year off work to recover after undergoing spinal surgery. When he returned, his employer decided to narrow his role (albeit on full pay) and failed to provide a date on which his previous remit would be reinstated. Mr Rochford refused to work, raised an internal grievance alleging disability discrimination (which was not upheld) and was subsequently summarily dismissed for misconduct on the grounds of insubordination following a disciplinary procedure.

At first instance and on appeal to the EAT, it was accepted that Mr Rochford's 'demotion', combined with his employer's failure to indicate when he would return to his 'full' role, constituted unlawful discrimination 'arising from' his disability. However, it was also found that his subsequent dismissal for insubordination was substantively fair (even if executed unfairly on procedural grounds). The Court of Appeal agreed, commenting that whether an individual is justified in refusing to work will be a matter of fact and degree in each case; in this case the employer's actions were aimed at supporting Mr Rochford's return and the revised scope of work was consistent with both Mr Rochford's contract and abilities. In this case, Mr Rochford was not entitled to do nothing until his employer yielded to his point of view, notwithstanding the fact that his treatment had been discriminatory.

Employers should be cautious not to interpret this decision as facilitating the dismissal of employees who raise concerns regarding discrimination. It is clear that an employee may sometimes be justified in refusing to work (such that it would be unreasonable to dismiss), but that the specific facts of this case meant that this was not so here. The decision also highlights the care with which employers should approach any changes to a disabled employee's role on their return to work. While reasonable adjustments should be considered, they should always be discussed openly and consistent with both an employee's contract and abilities.