Rochford v WNS Global Services (UK) Ltd & Ors

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's dismissal of his appeal. The Employment Tribunal had found that the employer's temporary restriction of the appellant's duties and failure to give a clear return-to-role date amounted to disability-related discrimination under section 15 of the Equality Act 2010, but also found that the employee's persistent refusal to undertake available and contractually within-scope work amounted to gross misconduct. The Tribunal held the dismissal was procedurally unfair but would have been within the band of reasonable responses if a fair procedure had been followed (Polkey reduction). The Court concluded that an employee is not automatically entitled to refuse all work simply because the employer has acted discriminatorily in related respects; where the tasks were within his capability and contractual duties, refusal could properly amount to misconduct and justify dismissal.

Background and parties: The respondent employer provided business process services. The appellant was a Senior Vice President in a vertical sales lead role who suffered a disabling back condition. After surgery he was off work for nearly a year. On return the employer proposed a phased return with responsibility for one sector only; the appellant refused to return except in his full VSL role. He formally returned but did no work and raised a grievance. Disciplinary proceedings led to summary dismissal on 9 April 2013.

Procedural history: The Employment Tribunal (Watford, Judge Manley) by reserved judgment (29 April 2014) found in part for the claimant: it concluded there was disability-related discrimination under section 15 of the Equality Act 2010 in the demotion and in failing to provide a clear indication of when he would return to his substantive role, but rejected claims that the dismissal itself was discriminatory and that reasonable adjustments had been omitted. The Tribunal found the dismissal procedurally unfair but that the claimant's refusal to do available work amounted to gross misconduct, meaning dismissal would have been within the range of reasonable responses if a fair process had been followed (Polkey). The Employment Appeal Tribunal (HHJ Peter Clark) dismissed the appellant's appeal on 24 September 2015. Leave to appeal to the Court of Appeal was granted by Lewison LJ.

Nature of the claims and issues: The appellant had advanced claims for disability discrimination, victimisation, unfair dismissal and wrongful dismissal. The principal appellate issue before the Court of Appeal was whether the Tribunal was wrong in holding that dismissal for refusal to undertake available work was reasonable where that refusal sprang from the appellant's refusal to acquiesce in what the Tribunal had found to be unlawful demotion (i.e. whether an employee can refuse to do work so as not to acquiesce in discrimination).

Court's reasoning: The Court (Underhill LJ, King LJ and Hildyard J) treated the question as one of fact and degree. It accepted the Tribunal's findings that the work offered was within the appellant's contractual duties and that he was fit to perform it. The Court held that an employee will sometimes be justified in refusing to work but that was not automatically so where the employer had acted unlawfully in a related way. The Tribunal was entitled to conclude that it was unreasonable for the appellant, receiving full pay and able to perform the tasks, to refuse to do any work while pursuing a bona fide dispute about the scope of his role. The Court saw no perversity in the Tribunal's conclusion that dismissal for misconduct was within the band of reasonable responses; consequently ground of appeal failed.

Subsidiary findings and implications: The Tribunal's finding of discrimination related to a temporary reduction in duties rather than a pay reduction. The Court emphasised that discriminatory failures come in degrees and do not automatically excuse contractual obligations. The Court dismissed the appeal and upheld the EAT decision.

Appeal dismissed. The Court held that the Employment Tribunal was entitled to find that the appellant's refusal to perform available, contractually within-scope work amounted to (gross) misconduct and that dismissal would have been within the band of reasonable responses despite the Tribunal's finding of disability-related discrimination in respect of the temporary reduction of duties; unlawful discrimination in related respects does not automatically entitle an employee to refuse all work.

Employment Tribunal (Watford, Judge Manley) reserved judgment 29 April 2014: partial success for claimant on disability-related discrimination (demotion and failure to indicate return date), dismissal found procedurally unfair but would have been within range of reasonable responses (Polkey). Employment Appeal Tribunal (HHJ Peter Clark) dismissed the appellant's appeal on 24 September 2015. Leave to appeal to the Court of Appeal given by Lewison LJ; Court of Appeal judgment [2017] EWCA Civ 2205 (20 December 2017) dismissing the appeal.