Employment law

News: Duty to Carry Out or Follow Orders of the Employer

  • Date: 23/06/2009
  • Source: Poppleston Allen
  • Author/Solicitor: Nick Arron

I'm sure you will have seen in the press, recent articles regarding an Employment Tribunal in which Pam and Frank Marshall claimed that Sam Smith's Brewery unfairly dismissed them after they refused to cut employees' hours by half from 89 to 45. The couple had been running Sam Smith's pubs for 25 years.

The Brewery instructed the Marshalls to cut their staff's hours in order to reduce the wages bill during these difficult times. The Marshalls refused, arguing that this would mean the pub could not operate efficiently and that it would create a significant burden on them to make up the lost time.

According to reports, the staff grievance procedure had not been completed. Aside from this issue, what obligation is there on the part of employees to follow the instructions of their employer?

The scope of an employer's powers and an employee's obligations will usually be set out in a written statement of terms and conditions. However, there are also certain obligations and duties owed by employees to their employer that exist whether or not they are written into contractual documentation. These usually arise out of custom and practice. Included in these is the general obligation to follow lawful instructions, which is an essential element of the relationship between the employer and the employee.

Employers' instructions should be followed as long as they are reasonable, lawful and do not place the employee in danger. Failure to follow a lawful order can be a breach of contract by the employee and a fair dismissal may follow from a refusal to comply with an instruction to carry out normal duties.

In some circumstances, an employee will be justified in refusing to obey an instruction even where it appears to be within the scope of the employer's powers. Examples include an instruction to do something amounting to a criminal offence or to do something that would put the employee or others in imminent danger.

An employee may also be free to disregard an order which falls out of the scope of their contract of employment. This is where an employee's job description can be crucial. For example, if the job description states that the individual is employed only as a Chef, then he cannot then be ordered, against his will, to be a Waiter for a week. This role falls outside the scope of the Contract.

To allow flexibility, many contracts of employment include a general clause stating that the employee must carry out any extra or general duties necessary for the business. Thus it may be unreasonable to refuse to follow an instruction to carry out new duties; for example, where a contract requires an employee to work at any of the employer's workplaces within a reasonable commuting distance of his home, a refusal to transfer from one workplace to another may justify dismissal.

It will be interesting to see, in this case, the details of the decision and whether the Tribunal find on the side of Sam Smith or the Marshalls. In these hard times, difficult decisions have to be made.

The decision is expected some time in the next few weeks.

For more information please contact Nick Arron .