B as in Boss
What instructions is my boss allowed to give me?
The rights and obligations between the employee and the employer are defined by law, collective bargaining agreements, works agreements and the employment contract. In addition, the employer has the right to give instructions to the employees on how, where and when they are to perform their contractual work duties. This right to issue instructions or directives is derived from § 106 sentence 1 of the Trade, Commerce and Industry Regulation Act (Gewerbeordnung, GewO).
How far does the right of direction extend?
The employer’s right is not unlimited. When exercising his right to issue instructions, the employer must take into account the interests of the employee. This limitation protects the employee from arbitrary instructions by the employer.
The right to issue directives only applies where no other agreements are in place. The more detailed an employment contract regulates the rights and obligations between the employee and the employer, the smaller the scope for the employer’s right of direction. Someone who is hired as an “employee” according to the employment contract can be assigned many different types of work; in the case of an “employee in the marketing department,” the scope of the employer’s is smaller. If the employment contract does not specify a location for the place of work, local transfers are easier than if a specific place of work has been agreed upon.
Do I have to follow an unlawful instruction?
If an instruction exceeds the legal framework, it is invalid and can only be followed with the consent of the employee. An instruction that exceeds the right of direction does not have to be followed by the employee and he or she may even refuse to work without losing his or her entitlement to salary. In practice, however, this is risky, since an unjustified refusal can result in consequences under labor law – such as a warning and termination with or without notice. Whether an instruction is lawful can be determined by filing a lawsuit with the labor court. In urgent cases, the employer can be prohibited from issuing unlawful instructions by means of an interim injunction.
Please note: This is a very general overview on the subject of right of direction under german labor law. If you need help in your particular case, please do not hestitate to contact me or book your appointment. I’m happy to help.