United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0336/14/MC

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

                                                                                                             At the Tribunal

                                                                                                             On 9 July 2015

                                                                            Judgment handed down on 24 September 2015

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

MR B ROCHFORD                                                                                                 APPELLANT

WNS GLOBAL SERVICES (UK) LIMITED & OTHERS                              RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

UNFAIR DISMISSAL - Reason for dismissal including substantial other reason

UNFAIR DISMISSAL - Reasonableness of dismissal

DISABILITY DISCRIMINATION - Disability related discrimination

CONTRACT OF EMPLOYMENT - Wrongful dismissal

The Employment Tribunal was entitled to find that the Claimant’s dismissal, albeit procedurally unfair, was substantively fair by reason of his misconduct, notwithstanding a separate finding that his demotion constituted discrimination arising from disability contrary to section 15 of the Equality Act 2010.  Further, that his wrongful dismissal claim failed by reason of his misconduct in refusing to perform any work which he was capable of doing and which fell within his contractual job description.

Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

1.                  This is an appeal by Mr Rochford, the Claimant before the Watford Employment Tribunal, against the Reserved Judgment of an Employment Tribunal chaired by Employment Judge Manley, promulgated with very full Reasons running to 46 pages on 29 April 2014, insofar as it held that his dismissal by the Respondent, WNS Global Services (UK) Ltd, was procedurally but not substantively unfair and was not wrongful at common law.

2.                  The Claimant joined the Respondent on 21 July 2011 as “Senior Vice President” and his role was described as Vertical Sales Lead (“VSL”) - Retail, CPG, Manufacturing, DBU - Europe, on a basic salary of £90,000 per annum plus a car allowance of £6,000.  He was also entitled to the benefit of a performance bonus plan.

3.                  He suffered from a longstanding back condition leading to surgery on 7 February 2012.  He was then off work.  He was seen by an external Occupational Health provider, Capita.  A report received on 5 October recommended a phased return to work.  The Respondent took the view that he should return to work carrying out a limited part of his VSL role.  The Claimant disagreed.  He said that that would be a demotion.  The Respondent failed to tell him that the aim was for him to work up to his previous role.  He refused to accept the limited role; he was warned that such refusal may lead to dismissal.  He maintained his stance following his return to work on 16 January 2013 and was eventually dismissed by letter dated 9 April 2013.  In that letter Mr Garber, Chief Sales and Marketing Officer, said:

“Your refusal to work and failure to co-operate with WNS [the Respondent] with its efforts to make you return to work amount to a fundamental breach of contract and are a gross act of insubordination.  WNS has therefore elected to terminate your employment for gross misconduct without notice.”

Against that dismissal decision the Claimant appealed, unsuccessfully, to Mr Selvadurai.

4.                  The issues arising in his complaint to the ET are set out at paragraph 2 of the ET Reasons.  Material to the present appeal are the following.

5.                  Given that he was disabled by reason of his back condition the Claimant raised five allegations of discrimination arising from disability contrary to section 15 of the Equality Act 2010 set out at paragraph 2.5.  Those on which he succeeded before the ET were that the Respondent failed to give him any clear indication of when he would return to work in his substantive position (paragraph 2.5.1) and demoted the Claimant on his return to work on 16 January 2013 (paragraph 2.5.3).  I note that further allegations of discrimination arising from disability in connection with the commencement of disciplinary action, his dismissal and rejection of his appeal in June 2013 were not upheld by the ET and those findings are not the subject of appeal.

6.                  As to the complaint of unfair dismissal the first issue concerned the Respondent’s reason for dismissal.  It was the Respondent’s case that the reason was conduct, alternatively some other substantial reason, namely a breakdown in trust and confidence; the Claimant contended that he was dismissed for discrimination arising from disability (see paragraphs 3.14.1 to 3.14.3).

7.                  If a potentially fair reason was established by the Respondent, was dismissal for that reason “generally fair”, including procedural fairness in relation to the handling of his grievance, and did dismissal fall within the range of reasonable responses?  The ET held:

(1)     that the reason for dismissal related to the Claimant’s conduct, namely his refusal to do anything which was within his competence and job description (see paragraph 9.19);

(2)     that dismissal for that reason was procedurally unfair, however;

(3)     had a fair process been followed dismissal would have been within the range of reasonable responses “given that we have found gross misconduct” (paragraph 9.26);

(4)     the finding of gross misconduct justifying summary dismissal at common law is contained in paragraph 9.19.  The refusal by this senior employee receiving full pay to do any work whatsoever, despite a number of warnings, amounted to gross misconduct.

8.                  In advancing this appeal Miss Masters, who represented the Claimant below, takes four points.  Her first submission is that the ET was wrong in law to characterise the Respondent’s reason for dismissal as relating to conduct; the correct label was a breakdown in trust and confidence caused by the Respondent.  That breakdown was caused by the Claimant’s refusal to acquiesce in the Respondent’s discriminatory act of demoting him following his return to work.

9.                  I reject that submission.  It was plainly open to the ET to accept the Respondent’s primary case that their reason for dismissal was the Claimant’s continued refusal to do any work within the limited scope of his original role on his return to work; work which he was physically capable of doing.

10.              The limited finding of section 15 discrimination related to the Claimant’s demotion and failure to indicate when he would return to work in his substantive position, as found by the ET, did not, in the ET’s view, entitle him to refuse to do any work.  The position may have been different, as Miss McKie QC for the Respondent submits, had the Claimant resigned shortly after 16 January 2013 and complained of constructive dismissal.  In those circumstances any constructive dismissal might well, based on the Claimant’s reason for resigning, the disability related demotion, have been necessarily unfair as not being for a potentially fair reason.  However, that is not the factual position.  The Claimant maintained his refusal to do any work in the reduced role and that is why he was dismissed.  It was not, the ET found, a dismissal tainted by unlawful discrimination.  The conduct finding by the ET was a permissible one with which I shall not interfere.

11.              Secondly, it is argued that even if the ET was entitled to find that the reason was conduct the dismissal for that reason was necessarily substantively unfair because the context of the Claimant’s refusal to work was his refusal to acquiesce in his discriminatory treatment, the demotion.  I repeat the answer to that point given by Miss McKie.  The proper course for the Claimant to take in those circumstances was to resign and claim constructive dismissal or possibly to have worked under protest.  What he was not entitled to do, so the ET permissibly found, was simply to refuse to do any work, draw his full pay after a year off sick and allow the disciplinary process to unfold having been warned of the consequences of his stand.

12.              For completeness, I reject Miss Masters’ point that the ET was wrong to accept Mr Garber’s genuine belief in the misconduct alleged (paragraph 9.20).  It was plainly open to the ET to find that Mr Garber genuinely believed that the Claimant was refusing to work.  He was.  That is clear from Mr Garber’s reason for dismissal articulated in his dismissal letter.  The fact that the ET subsequently held that the Claimant’s demotion amounted to section 15 discrimination does not alter the set of facts or beliefs in Mr Garber’s mind which led him to dismiss the Claimant.

13.              Thirdly, and at the heart of this appeal, it seems to me, is the suggestion that in finding that, subject to the procedural findings found by the ET, dismissal fell within the range of reasonable responses (substantive fairness), the ET fell into the same trap identified by Langstaff P in an earlier decision of an ET chaired by Employment Judge Manley, that is, Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854, namely to equate a finding of gross misconduct with a conclusion that dismissal was fair in that it necessarily fell within the range of reasonable responses.

14.              I note that in the Ealing case the ET expressed themselves in this way:

“Once gross misconduct is found, dismissal must always fall within the range of reasonable responses …” (EAT Judgment, paragraph 28)

15.              In the present case the ET say, at paragraph 9.26:

“9.26. For completeness we should say that we do think dismissal would have been within the range of reasonable responses given that we have found gross misconduct but that of course would have had to happen after a fair process.”

16.              In my judgment, this ET has not fallen into the same error as in the Ealing case.  Rather than finding the dismissal fair because gross misconduct was made out, in the present case the ET found the dismissal unfair.  It will be a matter for the ET at the later remedy hearing to apply the Polkey principle in assessing compensation, given the procedural unfairness found at the liability stage.  Further, I do not understand this ET to be saying, at paragraph 9.26, that a finding of gross misconduct renders dismissal necessarily within the band of reasonable responses (cf. Ealing, paragraph 38).  Rather, that taking into account the finding of gross misconduct the circumstances of the present case render dismissal for the conduct reason within the band.  That is not the same as saying that once gross misconduct is found dismissal must always fall within the range of reasonable responses.  It may, or it may not.  In this case, looking at the facts as a whole, it did subject to the procedural unfairness found.

17.              Finally, Miss Masters challenges the ET’s rejection of the wrongful dismissal claim.  This is a return to the contention, which I have earlier rejected, that the real reason for dismissal was the Claimant’s loss of trust and confidence following his “demotion”.  It was not.  He was dismissed because he refused to carry out any limited contractual duties that he was capable of doing as part of a return to work programme following a year long paid sickness absence.  That is conduct capable of justifying summary dismissal at common law.  The ET was entitled so to find.

18.              For these reasons, this appeal fails and is dismissed.  The case will now return to the Manley ET for determination of remedy for both unfair dismissal and section 15 discrimination.