This question around discriminatory treatment was asked at the Appeal Court in the case of Rochford v WNS Global Services UK Limited and others and the answer was ‘No’.
Why? Because two wrongs do not make a right.
The employee, Mr Rochford, worked for the company as a senior vice president for a salary of £90,000 a year, with a car allowance and a bonus. Mr Rochford was in charge of several business sectors. He suffered from a serious back condition and was considered disabled within the legal meaning of the word. In 2012, he underwent surgery and was on sick leave for almost a year. On 16 January 2013, Mr Rochford returned to work where he was given limited responsibilities and was asked to focus solely on the manufacturing sector. His salary and his title remained unchanged. In protest, Mr Rochford refused to work. He initiated a grievance and alleged that he was being subjected to discriminatory treatment. In response, in April 2013, the company started disciplinary proceedings against him that led to his summary dismissal by reason of gross misconduct.
Mr Rochford brought tribunal proceedings for discriminatory treatment (disability discrimination), victimisation, unfair dismissal and wrongful dismissal.
Proportionate means of achieving a legitimate business aim
Mr Rochford partly succeeded in his disability claim, in that the company did treat him unfavourably by removing status and responsibilities for reasons that arose from his disability. The company was unable to show that the demotion was a proportionate means of achieving a legitimate business aim.
The tribunal found that Mr Rochford’s dismissal was procedurally unfair but his conduct did justify dismissal: this meant Mr Rochford would receive limited compensation. He appealed to the Employment Appeal Tribunal and then the Court of Appeal.
The Court of Appeal considered whether it was reasonable for the company to dismiss Mr Rochford, considering its own prior acts of discriminatory treatment.
The court found the procedural defects were not sufficient to render the dismissal unfair. The court focused its mind on the seriousness of the misconduct relied on and the fact that a fair procedure would have led to a fair dismissal in any event.
The court gave a reminder that employees may sometimes be justified in refusing to work. However, Mr Rochford was being asked to carry out work that was within the remit of his job and nothing more: it was not open to him to decide that he was entitled to do no work at all, especially while in receipt of his full salary and bonus. The constant refusal to do the work after a number of warnings was simply not reasonable conduct. The refusal to work constituted an act of gross misconduct.
The court did not find that the company acted in bad faith in relation to the finding of discrimination. The fact that one party to a contract has committed a prior wrong does not give a free ticket for a breach of contract. The court simply rejected the possible argument that an employee can refuse to do any work until a wrong committed by the employer has been remedied. The court concluded that a more sensible course of action for Mr Rochford would have been to work under protest and bring a claim for discriminatory treatment.
The appeal was rejected.
Words of wisdom for employers
This case should serve as a reminder to employers to take care when dealing with an employee returning to work after a long-term sickness absence. Have a well thought out and transparent ‘return to work’ plan that is properly communicated to and discussed with the employee. Keep that communication open and make it happen often. If you envisage a phased return, justify the business need for it and make sure to include a reasonable timescale setting out the time when the employee will be considered for a return to his or her full contractual duties.
For more information on any of the issues raised in this article or on employment issues in general, contact Kay Holland in the Bristol Employment Team by emailing [email protected] or calling 0117 904 7720.