Employment Law Speed Read – 15/01/18
15th January, 2018
This week we look at the case of an employee who refused to carry out any work after his duties were reduced following a period of sick leave.
Rochford v WNS Global Services (UK) Limited and Ors
In Rochford v WNS Global Services (UK) Limited and Ors the Court of Appeal have ruled that an employee cannot refuse to carry out work where they have been subjected to a discriminatory demotion.
Mr Rochford (R) was a Senior Vice President at the Respondent’s company, WNS Global Limited (WNS) and carried out the role of the Vertical Sales Lead (VSL).
R suffered from a serious back condition and had to undergo surgery in February 2012. Both parties agreed that R’s condition satisfied the meaning of disability under the Equality Act 2010.
R was off work for nearly a year recovering from his operation. During this time he was assessed by Occupational Health who suggested a phased return. WNS proposed to R that on his initial return to work he would be responsible for only part of his previous duties. R objected to this and stated he only wanted to return if he was able to fulfil his full VSL role.
In January 2013, R returned to work but refused to carry out any work on the basis that his responsibilities had been reduced. R also made a formal grievance on the basis that this was discrimination. WNS instigated disciplinary procedures because of R’s refusal to carry out work. Subsequently, R was summarily dismissed for misconduct.
R brought claims for discrimination, unfair dismissal, wrongful dismissal and victimisation.
R’s claim for discrimination arising from disability was successful as the ET found that WNS had demoted R for reasons arising from his disability and had neglected to tell him when he would be resuming his full responsibilities. R’s unfair dismissal claim succeeded on the basis of procedural unfairness, however his refusal to work was gross misconduct and therefore his dismissal would have been fair but for the procedural defects. Consequently his compensation was reduced. R’s other claims failed.
Employment Appeal Tribunal
R appealed to the EAT arguing that it was wrong to find him guilty of gross misconduct. His appeal was dismissed.
Court of Appeal
R appealed to the Court of Appeal, arguing that it was wrong for the Tribunal to find that WNS had acted reasonably in dismissing him for refusing to work, where they had committed an unlawful discriminatory act in refusing him to resume his full duties or inform him when he would be able to do so.
The Court dismissed the appeal, holding that: “it is not the law that an employee who is the victim of a wrong can in all circumstances simply refuse to do any further work unless and until that wrong is remedied. He may in some circumstances have to seek his remedy in the courts.”
This case is a reminder that employees cannot simply refuse to work when there is a dispute. The courts have confirmed that a legitimate course of action would have been for R to resign and claim constructive dismissal or work under protest.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.