It is very annoying if your instructions are not followed by your employee. For example, the one employee on whom you cannot count on to appear on the work floor around the weekend or the one who thinks that your neat dress code does not apply to him or her. If this happens repeatedly it can be very frustrating. Fortunately, the law offers a solution for this. In both cases, and many others, you may be denied work. In this article we explain when this is the case and what you can do about it as an employer. First we will go into what instructions you, as an employer, may give. Next, we will discuss which instructions an employee may refuse and which, on the other hand, will lead to a refusal of work. Finally, we will discuss what options you have as an employer to deal with a refusal of work.
What instructions are you allowed to give as an employer?
As an employer, you have the right to instruct to encourage the employee to work. In principle, your employee must follow these instructions. This follows from the relationship of authority between the employee and the employer on the basis of the employment contract. This right of instruction applies both to regulations relating to work (e.g. work tasks and clothing regulations) and to the promotion of good order within the company (e.g. working hours, collegial standards of conduct and statements on social media). Your employee is obliged to follow these instructions, even if they are not apparent from the wording of the employment contract. If he or she fails to do so and persistently does so, it is a case of refusal of work. Nevertheless, a number of nuances apply here, which are explained below.
An assignment from you as an employer does not have to be followed if it is unreasonable. An assignment is reasonable if it can be seen as part of the employment contract in the context of being a good employee. For example, a request to work overtime in a shop during the busy Christmas period may be a reasonable assignment, but not if it leads to a working week of more than 48 hours (which, moreover, is unlawful on the grounds of Section 24 subsection 1 of the Labour Act). Whether an assignment is reasonable and therefore a refusal of work depends on the circumstances of the case and the interests involved. The employee’s objections and the employer’s reasons for giving the assignment must be taken into account. If it can be assumed that the employee has an urgent reason to refuse the assignment, there is no question of refusal of work.
Unilateral amendment of working conditions
Moreover, an employer may not unilaterally change working conditions. For example, the salary or the workplace. Any changes must always be made in consultation with the employee. An exception to this is that in some cases it is permitted if it is included in the employment contract or if you, as the employer, have a serious interest in doing so. If you have any questions about this, we at Law & More are ready to answer them for you.
When can an employee refuse your instructions?
In addition to the fact that an employee may refuse an unreasonable assignment and, moreover, may not unilaterally alter working conditions, there are also additional obligations arising from the requirements of good employee and employer status. These include health and safety standards. For example, an employee must take into account the physical condition of employees in the event of pregnancy or incapacity for work, for example. A worker cannot ask a worker to follow instructions that pose a risk to his health and must ensure safe working conditions. Conscientious objections must also be taken into account, provided that the work can be carried out in an appropriate form.
Circumstances of the case
If your instructions comply with the standards described above and the employee continues to refuse them in a persistent manner, this constitutes a refusal of work. There are some common cases in which the question is whether there is a refusal of work. For example, in the event of incapacity for work, (sickness) absence or an employee who does not wish to perform reasonable tasks because they are simply outside his regular duties. Whether there is a denial of work strongly depends on the circumstances of the case and the objections of your employee, so it is wise to exercise some caution and seek legal advice if necessary. This certainly applies when you are considering follow-up steps. Moreover, if you have doubts as to whether there is in fact incapacity for work if your employee refuses work for this reason, it is always important to await the opinion of an occupational health and safety doctor or company doctor. Other cases are in fact very clear cases of refusal of work. For example, if, in a period of understaffing, you have exceptionally given your employee permission to take time off if he or she can be reached by clients, but he or she subsequently goes on holiday in a remote area and is completely unreachable.
Consequences of refusal of work
If your employee refuses his work, you as an employer naturally want to intervene as quickly as possible in order to retain your authority. It is important to take appropriate measures in this case. You can impose a disciplinary measure on the employee. This could include issuing an official warning or withholding pay for the refused working hours. In the event of repeated refusals to work, it is possible to take more far-reaching measures such as dismissal or summary dismissal. In principle, refusal of employment is an urgent reason for dismissal.
As you have read above, the question of when there is a refusal of work and what appropriate measures may be taken in this case depends very much on the concrete circumstances and agreements made between employer and employee. Do you have any questions about this? Please contact Law & More. Our specialised team uses a personal approach. Together with you we will assess your possibilities. On the basis of this analysis, we will be happy to advise you on the appropriate next steps. Should this be necessary, we will also give you advice and assistance during a procedure.