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Disability discrimination and refusing to work in protest

An employee demoted on discriminatory grounds was not entitled to refuse to work and his subsequent dismissal for misconduct was not discriminatory. Mr Rochford suffered… Read more

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An employee demoted on discriminatory grounds was not entitled to refuse to work and his subsequent dismissal for misconduct was not discriminatory.

Mr Rochford suffered a back injury which prevented him from working as the vertical sales lead for WNS Global Services for roughly one year. It was accepted that the injury amounted to a disability. On returning to work, Mr Rochford was not allowed to resume his previous duties in full: his responsibilities were limited to one sector and his line management responsibilities were removed. His title and salary package remained the same. WNS Global limited his duties in this way so that Mr Rochford could get himself back up to speed and prove he could still perform his old role – this was found to be disability discrimination by the ET.

In response, Mr Rochford refused to work at all and he was consequently dismissed for misconduct. This was held to be procedurally unfair by the ET but not discriminatory. Mr Rochford argued that he had ultimately been dismissed because he refused to comply with a discriminatory demotion. The Court of Appeal decided that the dismissal was not discriminatory. Mr Rochford’s subsequent treatment shifted away from being directly connected with disability and related to his attitude in refusing to perform duties that he was capable of doing (it being the case that the limited duties on offer had been within Mr Rochford’s competence and the terms of his contract). Mr Rochford could have resigned and claimed constrictive unfair dismissal or worked under protest instead.

Comment: This is a helpful case for employers because it reinforces the principle that employees who are the victims of wrongdoing (as was the case here) cannot take this as leave to act in any way they wish to. For example, the manner in which an employee pursues whistleblowing allegations or a grievance could lead to a fair dismissal on conduct grounds. That said, any dismissal involving a history of discrimination against an employee, or whistleblowing allegations, will need to be handled with extreme care.

Rochford v WNS Global Services Limited [2017] EWCA Civ 2205