Rochford – v – WNS Global Services is a small (9 page) but perfectly formed UK Court of Appeal decision around when you can stand on your principles in the face of discrimination by your employer and when it just gets you sacked.

Mr Rochford had been absent for an extended time with a bad back which all agreed constituted a disability.  WNS was quite happy to see him return to work.  However, given the length of his absence it took the superficially sensible step of requiring him to come back initially to a reduced role (though with undiminished title and remuneration) to show that he was up to resuming the mantle in full.  Rochford took the view that this requirement was discrimination, as was WNS’s failure to give him any fixed timescale for getting the rest of his previous duties back too.  As a result, he refused to carry out even the bit of his previous role which WNS had said he should do.  Despite warnings and a disciplinary process his stance persisted and Rochford was summarily dismissed for what WNS saw as his failure to comply with a reasonable management request.

The Employment Tribunal found that WNS did not actually have any medical justification for denying Rochford the ability to come back to his full role immediately or for not giving him any fixed timescale when he would be able to do so.  This was a bad back, not a psychiatric condition which might indeed require a gentler reintegration to work.  Therefore Rochford had been treated in a discriminatory manner, but did that give him a right to refuse to do the part of his former role that WNS wanted?  It was argued for Rochford that this would effectively be accepting that WNS’s treatment of him was legitimate, and you can sort of see his point.

However, neither the Employment Tribunal nor the EAT nor, as it turned out, the Court of Appeal thought that this legitimised Rochford’s refusal to do any work at all, especially something which was a major part of his previous role and was clearly within his capability.  After all, he had kept his title and had continued to be paid in full.  Refusal in the face of clear warnings was indeed gross misconduct and so Rochford lost.

Lessons for Employers:

1. So how is this different from, where an employee who had refused to return to work for a full 20 months because of perceived discrimination by his colleagues was found to have been unfairly dismissed? When can an employee legitimately refuse to work on such grounds?  The facts of Akinwunmi were pretty extreme – the discrimination found was malicious and personal and there would have been patient safety issues if Dr Akinwunmi had returned to that environment without resolution.  By contrast, here Rochford was at all times was assured of WNS’s good faith, there was no suggestion of malice in its treatment of him, he was being paid and there were no structural obstacles to his doing the bit of the role WNS requested.  In addition, unlike Dr Akinwunmi, Rochford had been spoken to at length about the consequences of maintaining his stance.

2. As to knuckling down being seen as acquiescence, the Court of Appeal did not agree. If Rochford felt so sure of his position he could resign and claim constructive dismissal, but even if that were too brave a leap, it was always open to him to do the work while running an ET claim in parallel.  What he could not do was find objection to some aspect of his treatment at the hands of his employer in relation to one part of his job and therefore down tools on the lot.

3. The reasonableness of the employer’s instruction will be a question of fact in each case, said the Court: “Acts of unlawful discrimination are not uniquely heinous; like other wrongs, they come in all shapes and sizes and how it is reasonable to respond to them in any given case is a matter for the assessment of the Tribunal“.

4. WNS was found to be trying to do the Right Thing in requiring a gradual return to work.  In a mental health case it could have faced significant criticism if it had not insisted on a reintegration period.  But the short point was that there was no hard medical evidence that Rochford’s physical condition required any such adjustment, with the consequence that WNS’ requirement, clearly arising from his disability, could not be justified.  It is often appropriate to have a gradual return after a long period of sickness absence, but that should if at all possible be by agreement with the employee and only implemented without that agreement where there is the clearest medical requirement for it.