Unfair instructions issued by the employer are not binding.

 Federal Labour Court, judgment of 14.09.2017 – 5 AS 7/17.

Unbillige Weisungen des Arbeitgebers, Insight von Felix Hebert, Rechtsanwalt der Kanzlei Buse Heberer Fromm

The employer has the right to issue binding work instructions to his employees. He must however take certain limits into account. On the one hand, an instruction must not violate regulations of the employment contract, a works agreement, a collective bargaining agreement or legal regulations. On the other hand, the instruction must also be commensurate with reasonable discretion, i.e. the employee’s interests must be adequately taken into consideration (§ 106 p. 1 Gewerbeordnung; Industrial Code).

According to the Federal Labour Court’s previous case law, unfair work instructions issued by the employer were binding for the employee until a court established the non-binding nature of the instruction. In light of this, employees could be warned or dismissed if they had failed to comply with unfair work instructions without having first obtained a court ruling on the unfairness.

The Federal Labour Court has recently changed its case law and is now of the view that employees are not obliged to follow unfair work instructions. In particular, they do not have to await a legally binding court decision stating that the instruction is unfair before opposing to the instruction.

In this particular case, the employer had terminated the contract without notice after the employee had refused an employment relocation from Dortmund to Berlin.

Recommendation for practice

If the employer exercises his right to issue instructions, he must carefully examine whether the instructions are commensurate with reasonable discretion. Since employees may now refuse to comply with unfair instructions from the beginning, the employer can no longer issue a warning or dismissal effectively on the basis of such a refusal. However, if the employee rejects the instruction, he or she still bears the risk of an incorrect assessment of the legal situation, with the corresponding negative consequences.