Demoting disability

The Court of Appeal has held in Rochford v WNS Global Services (UK) Ltd and ors that it is misconduct for an employee to refuse to work even if they have been demoted for a reason related to their disability. Dismissing the employee in these circumstances is therefore fair.

Basic facts

Mr Rochford had worked for WNS since July 2011 as a senior vice president with a salary of £90,000 per year, plus car allowance and bonus. After being off work for nearly a year following back surgery in February 2012, he was told that on his return to work, he would only have responsibility for one business sector, as opposed to several although he would continue to be paid his full salary.

Although he formally returned to work in January 2013, he refused to do any work. Instead, he lodged a grievance arguing that the company’s refusal to allow him to return to his full role constituted disability discrimination. However, because he did not do any work at all on his return, the company initiated disciplinary proceedings and dismissed him for misconduct. Mr Rochford brought claims of unfair dismissal and disability discrimination.

Decision of lower courts

The tribunal held that the company had treated Mr Rochford less favourably for a reason arising from his disability when it demoted him and the treatment could not be justified.

As for the claim for unfair dismissal, the tribunal held that it was procedurally defective and therefore unfair. However, as Mr Rochford’s refusal to do any work at all constituted gross misconduct justifying dismissal (had a fair procedure been adopted), he could expect his compensation to be reduced accordingly.

Mr Rochford appealed against the finding that he had been guilty of gross misconduct but the EAT dismissed his appeal.

Decision of Court of Appeal

The Court of Appeal also dismissed his appeal on the basis that the work he was asked to do was within the scope of his contractual duties and he was fit to do it. It was thus, on the face of it, a breach of contract – in other words misconduct – for him to refuse to do that work.

In any event, he had other options in the sense that he could have resigned and claimed constructive dismissal or stayed at work and done what was being asked of him but doing so under protest. If he still felt that his continuing demotion and/or uncertainty as to its duration was unlawfully discriminatory, there was nothing to stop him from bringing tribunal proceedings on that basis.

The Court concluded 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 [sic] may in some circumstances have to seek his remedy in the courts”.