In contrast to a self-employed person, an employee has the duty to perform externally determined and instruction-bound work. The employee’s resulting obligation to follow instructions in the workplace and thus the employer’s right to issue instructions have been derived directly from the law since the introduction of § 611a BGB. The purpose of the right to issue instructions in the workplace is to make the previously determined activity achievable (concerning a certain level of flexibility in terms of the concrete execution) to meet operational requirements adequately.
On occasion, the instructions given by employers may not be achievable, and disputes can arise. This article will outline the legal requirements for the issuing of instructions in the workplace. Should you require further legal counsel on this topic, please make sure to contact us directly using our contact form below this article.
German Law: the limits of the righ to issue instructions in the workplace
According to § 611a (1) BGB, the employer is permitted to specify the content, place and time of the employee’s work performance agreed in the employment contract. The addition of § 106 GewO must be considered in that the right to issue instructions naturally has certain limitations. Thus, the right to give instructions finds its limits, particularly in the employment contract, in legal norms and, if applicable, in the applicable collective agreement. In addition, the employer must give his instructions “at their reasonable discretion”. An instruction is “reasonable” if the personal interests and the position of the employee have been considered fairly and reasonably.
It should be noted that labour law must bear in mind the fundamental rights of the employee. This means that the employer must always respect the employee’s human dignity, general personal rights, freedom of religion, and opinion. If, for example, the possibility of a transfer is not contractually fixed from the outset, it is necessary to examine in detail whether it takes sufficient account of the employee’s interests and stands up to a lawful personnel selection decision. This was shown in the following case where the proposed transfer was considered due to interpersonal conflicts: LG Mecklenburg-Vorpommern, ruling dated 30.07.2019 – 5 Sa 233/18.
Activities agreed to in the employment contract must match the occupational profile of the position. The employer cannot unilaterally assign the employee a job or activity that has not been agreed to by the employee. The contents of the employment contract must be seen as reasonable and unclear provisions and clearly comprehensible. The instructed activity must be an equivalent occupational profile. (BAG 09.05.2006, Az. 9 AZR 424/05).
An employer issues unreasonable instructions or instructions to activities not provided clearly within the employment contract can result in them being deemed non-binding. This non-binding nature of unreasonable instructions comes from the Bundesarbeitsgericht (Federal Labour Court) BAG, decision dated September 14, 2017 – 5 AS 7/17.
As stated earlier, fundamental rights play a large role in the issuing of instructions in the workplace. One of the fundamental rights in this regard is that of the right to religious tolerance. Employers cannot simply provide instructions to their employees to go against the employees’ religious beliefs. The LAG Hamm ruling dated November 8, 2007 – 15 Sa 271/07 is when the court provided a ruling on this matter.
How can instructions in the workplace be enforced?
The final enforcement of an instruction ultimately depends on the legality of the instructions and the compliance of the employee. In most cases, employees follow the instructions of their employer as is set down in their employment contract. Should the instructions be legal, under the employment contract and not deemed unreasonable, then it is the role of the employee to carry out said instructions. However, if the employee resists, a warning can be issued first. Further consequences can be dismissal and claims for damages by the employer against the employee. Employers should be aware to have a warning system in place, as quick dismissals can lead to cases being taken for unfair dismissal.
What can employees do against unlawful instructions?
An employee can effectively defend himself against unacceptable instructions by refusing to follow them. But be aware that the classification of lawful and unlawful is not based on subjective perception. Lawful and unlawful instructions must reach an objective standard! Therefore, an overall view must be taken, based on the employment contract and possibly any relevant collective agreements. Such standards also consider the factual circumstances of the matter and the decision-making process of the employer. Once all of these have been considered, can it be assessed whether the instructions were legally sound or not. An arbitrary and rash assessment on the part of the employee can result in consequences for the employee under labour law, up to and including dismissal.
It is therefore advisable to follow the instruction with a stated reservation in the first instance. If it can be found that the instruction is unfair, the employee may have a right to terminate the contract and claim damages. However, it is strongly advised to consult with an employment law specialist before taking any major action. An employment law specialist will have more experience when it comes to assessing the issuing of instructions in the workplace and assessing the standard of the instructions issued to the employee.
It is advisable at first instance to try and work together amicably. Employees should bring their doubts to their employer and resolve matters in a non-confrontational manner at first. However, if no headway is made in trying such an approach, the employee should consider the advice of a legal specialist.
Practice Group: German Employment Law
German Employment Law
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