Brian Rochford, 53, is bringing the case against his former employer WNS Global Services. It will be heard in the Court of Appeal on Wednesday 4th October 2017 following earlier hearings at an Employment Tribunal and Employment Appeal Tribunal
The case will hear an important principle of law which has never been previously addressed by the Court of Appeal.
Law firm Leigh Day, who are representing Mr Rochford, say the case will address whether it can be fair to dismiss an employee for refusing to participate in discrimination against them.
Mr Rochford’s legal team argue that unless earlier findings by the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) are overturned employers could routinely profit from their own acts of discrimination by simply dismissing staff who declined to accept discriminatory treatment.
In July 2011 Mr Rochford joined WNS Global Services as a Senior Vice President. In February 2012 Mr Rochford needed major spinal surgery for a back injury and chronic pain. As part of his rehabilitation he had to take time off work. Despite the seriousness of the surgery, including impact on other existing conditions, he made an excellent recovery.
In May 2012, following advice from his medical team, Mr Rochford was ready and enthusiastic to return to work. Mr Rochford felt that his return was delayed and drawn out by WNS over the following months, negatively impacting his overall recovery and rehabilitation.
On returning to work in January 2013 Mr Rochford was demoted to a lesser role. He was deeply disappointed by the demotion, had grave concerns about what he was being asked to do in his new role and was given no assurance that he would return to his substantive role.
Following his demotion and the failure to clarify when he would go back to his normal role, Mr Rochford lost trust in his employer. Given Mr Rochford’s concerns about the demotion he raised an internal grievance, which was not upheld.
As a result of all the concerns raised by his demoted role Mr Rochford refused to carry out this role as he refused to participate in the discrimination against him.
He was dismissed by his employer in April 2013 who stated that Mr Rochford should have carried out instructions to do the demoted role, even though the demotion was discriminatory. The ET confirmed that the demotion was discriminatory.
In previous hearings the ET and EAT also found that Mr Rochford was denied assurances about his return to his substantive role but had completed and co-operated fully with the return-to-work process.
The view of the EAT was that an employee who is subjected to discrimination has the option to resign and sue for constructive dismissal or to work under protest. Typically employees are advised to exhaust all internal avenues before pursuing external legal remedies. In addition, there can be implications for an employee in accepting a lesser role, even on a temporary basis and under protest.
Mr Rochford argues that he should not have had to resign and sue or work under protest as he should have been able to rely on his statutory right contained within the Equality Act 2010 not to be discriminated against.
Mr Rochford said ahead of the Court of Appeal hearing:
“I look forward to presenting my case to the Court of Appeal in the hope that they will overturn the previous tribunals’ judgments.
“My case is one of clear discrimination and it is not right that my employer was able to dismiss me from my role as a result of that discrimination.”
“We believe that the earlier judgments by the ET and EAT effectively give employers a way to profit from their own acts of discrimination which could allow them to dismiss those who refuse to acquiesce in discrimination against them.
“We hope that the Court of Appeal will rule in our client’s favour and correct the flawed basis of the decisions by the ET and EAT and clarify actions for employees facing workplace discrimination.”
The Equality and Human Rights Commission is supporting Mr Rochford in his case because it will clarify the law and help employees and employers understand their rights and obligations under the Equality Act 2010.