Rochford v WNS Global Services (UK) Ltd & Ors

A finding of gross misconduct does not itself make dismissal fair. The tribunal must decide, on the facts as a whole, whether dismissal fell within the range of reasonable responses.

A claimant’s disability-related demotion, although unlawful under Equality Act 2010, does not necessarily entitle the claimant to refuse all work that remains within their competence and contractual role. A refusal to perform such work, after warnings, may be a conduct reason for dismissal and may amount to repudiatory misconduct justifying summary dismissal.

The claimant, a senior employee disabled by a back condition, returned from prolonged sickness absence to a limited part of his former role. The Employment Tribunal found that the respondent's failure to make clear when he would resume his substantive post, and his resulting demotion, were discrimination arising from disability under section 15 of the Equality Act 2010.

The claimant nevertheless refused to do any work within the limited role, despite being capable of doing it and being warned of the consequences. He was dismissed for gross misconduct. The Tribunal found the dismissal procedurally unfair but substantively within the range of reasonable responses, and rejected his wrongful-dismissal claim. He appealed those findings to the Employment Appeal Tribunal.

1. Appeal dismissed. It was open to the Tribunal to find that the operative reason for dismissal was conduct: the claimant's continued refusal to undertake any work within the reduced scope of his contractual role that he was physically capable of performing.

2. The finding that the respondent had committed disability-related discrimination by demoting the claimant did not make the later dismissal discriminatory or necessarily unfair. The discrimination concerned the demotion and the absence of clarity about a return to the substantive role. It did not entitle the claimant simply to refuse all work while continuing to receive full pay. Resignation and a constructive-dismissal claim, or working under protest, were possible alternatives.

3. The Tribunal was entitled to find that the dismissing manager genuinely believed that the claimant was refusing to work. That belief was not displaced by the separate finding of discrimination under section 15 of the Equality Act 2010.

4. The Tribunal had not treated gross misconduct as automatically placing dismissal within the range of reasonable responses. As explained by reference to Brito-Babapulle, that automatic approach is erroneous. Gross misconduct may or may not justify dismissal; the Tribunal must assess the circumstances as a whole. On these facts, subject to the procedural unfairness, dismissal was within the range.

5. The claimant's refusal to carry out any limited contractual duties he could perform was conduct capable of justifying summary dismissal at common law. The matter was to return to the Tribunal for remedy in respect of the procedurally unfair dismissal and the section 15 discrimination.

• Employment Appeal Tribunal: dismissed the claimant's appeal and left standing the finding that dismissal was procedurally unfair but substantively fair, together with the finding of discrimination arising from disability under section 15 of the Equality Act 2010. The case was to return for remedy.

• Watford Employment Tribunal: by a reserved judgment promulgated on 29 April 2014, found the dismissal procedurally unfair but not substantively unfair, rejected wrongful dismissal, and upheld two allegations of discrimination arising from disability.