Rochford v WNS Global Services (UK) Ltd & Ors

An employee’s prior exposure to unlawful discrimination does not automatically entitle them to refuse all work. Whether refusal is justified, and whether dismissal for that refusal is reasonable, is a question of fact and degree. The tribunal must consider the employee’s contractual duties, fitness to perform the work, pay, the nature and seriousness of the employer’s prior wrong, the parties’ conduct, and all other circumstances. A bona fide dispute about a return to a former role does not itself suspend continuing contractual obligations. An employee may, depending on the circumstances, work under protest and pursue a legal remedy. A dismissal may be for misconduct under Employment Rights Act 1996, section 98(2), even where the refusal arose from a disability-related dispute.

The claimant, a disabled employee returning after lengthy sickness absence, was not permitted immediately to resume his full senior sales role. The Employment Tribunal found that his demotion and the failure to give a clear indication of when he could return to that role amounted to unjustified unfavourable treatment under section 15 of the Equality Act 2010. It rejected his claims concerning dismissal and reasonable adjustments, but held that the dismissal was procedurally unfair and that his refusal to undertake work within his contractual role amounted to gross misconduct, limiting compensation under the Polkey principle and defeating his wrongful-dismissal claim.

The Employment Appeal Tribunal dismissed his appeal. The Court of Appeal considered whether the prior discriminatory treatment entitled him to refuse all work, whether the dismissal was properly characterised as misconduct, and whether the procedural findings affected the Polkey and wrongful-dismissal conclusions.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the dismissal was for misconduct. The employee’s reason for refusing work might bear on the reasonableness of dismissal, but it did not alter the employer’s actual motivation or the character of the reason under section 98(2) of the Employment Rights Act 1996.
2. The work offered was within the employee’s contractual duties and he was fit to perform it. Refusal to do that work, and in fact to do any work while receiving full pay, was on its face misconduct. Persistent refusal after warnings could amount to gross misconduct justifying summary dismissal, subject to the requirement that dismissal be reasonable in all the circumstances. That approach was consistent with Piggott Brothers v Jackson [1992] ICR 85.
3. Whether the prior unlawful discrimination justified the refusal was a question of fact and degree. The finding of discrimination did not give the employee an absolute right to refuse work until the dispute was resolved. The discrimination was not direct or deliberate, the employer’s position was genuinely held and not advanced in bad faith, and the tasks offered were not themselves discriminatory. The Tribunal was entitled to conclude that the dispute about the return to the full role had shifted away from the separate question whether the employee could refuse all work.
4. An employee may, depending on the circumstances, work under protest and bring proceedings or seek another available legal remedy. Resignation and constructive dismissal were not stated to be the only options. The Court did not accept that working under protest would have prejudiced the substantive discrimination claim.
5. The procedural defects made the dismissal unfair, but the Tribunal’s finding that dismissal would have been within the range of reasonable responses had a fair procedure been followed was unaffected. Taylor v OCS Group Limited [2006] ICR 1602 did not assist on that separate Polkey issue. The wrongful-dismissal ground stood or fell with the conclusion that the refusal constituted gross misconduct justifying summary dismissal.

• Employment Tribunal, Watford: allowed part of the disability-discrimination claim; found the dismissal procedurally unfair, but held that the employee’s refusal to undertake work within his competence amounted to gross misconduct and would have justified dismissal following a fair procedure.
• Employment Appeal Tribunal: dismissed the employee’s appeal on 24 September 2015.
• Court of Appeal (Civil Division): dismissed the appeal, agreeing with the Employment Tribunal’s material conclusions.