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When Can Employees Refuse to Work?

on Friday, 12 January 2018.

In Rochford v WNS Global Services, the Court of Appeal held that a wronged employee does not have the right to refuse all work given to him until the wrong has been remedied.

The Facts

Mr Rochford, a sales lead with Senior Vice President status, had been unable to work for almost a year due to a back condition. Occupational Health (OH) recommended a phased return to work. On this basis, when Mr Rochford came back from sick leave his employer did not allow him to return to his previous role and reduced his duties, however his pay remained the same. He was also not told when this situation was likely to change.
Mr Rochford subsequently refused to do any work and was dismissed by his employer for gross misconduct. He brought various claims in the Employment Tribunal (ET) including unfair dismissal, disability discrimination and wrongful dismissal.

The Decision

In the first instance, the ET found that Mr Rochford's demotion followed by a failure to indicate when he would return to his full duties, amounted to discrimination arising from disability.

The ET also found that his dismissal was procedurally unfair. However his refusal to do work which was within the scope of his contractual duties and which he was fit to do, whilst on full pay and despite a number of warnings, had constituted gross misconduct. This would therefore limit any compensation to an award for procedural unfairness.

Mr Rochford appealed against the finding that he had been guilty of gross misconduct to both the Employment Appeal Tribunal (EAT), and then Court of Appeal, which dismissed his appeal. In its judgment, the Court of Appeal emphasised that "it is not the law than 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".

Best Practice

  • In their judgments in this case, the EAT and Court of Appeal indicated that the proper course for an employee in Mr Rochford's position would be either to resign and claim constructive dismissal, to work under protest, or to bring an employment tribunal claim.
  • However it may not be unreasonable for an employee to refuse work in all instances. Each case will turn on its own specific facts.
  • In cases where OH has recommended a phased return to work, it is important that the employer engages with the returning employee, particularly after a long period of absence, to ensure a smooth return.
  • Employers should consider any reasonable adjustments in consultation with the employee in question and ensure these are consistent with the contract of employment.
  • Employers should also be transparent about the process of a phased return and ensure the employee is kept informed about the timeline for a full return to normal duties.

For more information please contact Eleanor Boyd in our Employment Law team on 020 665 0940.

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