Employee who refused to return to work on reduced duties was fairly dismissed for conduct

The Claimant, Rochford, was recruited by WNS Global Services UK as a Vertical Sales Lead in various areas, such as retail and manufacturing. He suffered from a back condition which resulted in absence from work. An occupational health report recommended a phased return to work, which the employer took to mean that Rochford could only take on part of his original duties when he returned. However, Rochford disagreed and argued that this permanent change will be a demotion from his previous role. He did not accept this lesser role. Even after his return to work, he still refused to comply. He was informed that his lack of cooperation could lead to dismissal, which it what eventually took place. His letter of dismissal stated that his refusal to work on reduced duties was a fundamental breach of contract, constituting gross misconduct.

Rochford claimed unfair dismissal and discrimination arising from disability.

The Employment Tribunal (ET) ruled that the reason for Rochford’s dismissal was his refusal to do anything which was within his competence and job description. It found that the dismissal was procedurally unfair, however, decided that the dismissal would have occurred anyway even if a fair and reasonable procedure had been followed. It also found the employer’s assertion of gross misconduct to be reasonable. The discrimination element of the claim was not upheld. Rochford appealed.

The Employment Appeal Tribunal was satisfied that the ET was right to hold that the dismissal fell within the range of reasonable responses available to an employer, the main test applied to cases of unfair dismissal. The Claimant was not dismissed because of loss of trust and confidence due to the demotion, but because of his conduct i.e. his refusal to carry out any duties, including the limited duties part of his phased return to work. The EAT concluded that the dismissal was substantively fair as gross misconduct was found. There was an appropriate route for the employee to choose as a result of his dissatisfaction, which was to resign and claim constructive dismissal. He was not entitled, as the EAT found, to simply refuse to work and draw his sick pay entitlement at full pay and allow the disciplinary process to unfold after he had been warned of the consequences.