Wer trägt das Risiko einer unbilligen Arbeitgeberweisung?

Both the Federal Labor Court (hereinafter: BAG) and numerous state labor courts (hereinafter: LAG) have recently increasingly addressed the question of whether an employee has the right to refuse performance in the event of unfair employer instructions.

In its more recent case law, the BAG rejects such a right (BAG of February 22, 2012 - 5 AZR 249/11) and shifts the legal and economic risk of unfair employer instructions to the employee. Numerous lower courts have also agreed with this legal opinion and confirmed the case law of the BAG (e.g. LAG Cologne from January 13th, 2014 - 2 Sa 614/13, LAG Rhineland-Palatinate from March 17th, 2014 - 3 Sa 535/13). Now, in its current decision (judgment of March 17, 2016 - 17 Sa 1661/15), the LAG Hamm has expressly rejected the prevailing opinion in the case law and recognized the employee's right to refuse performance. We take this dispute in case law as an opportunity to present both the unilateral right to issue instructions and the legal consequences of unreasonable work instructions.

Right to give instructions

If the content of the work to be performed by the employee is not specified in the employment contract, the employer has the right to unilaterally determine the performance in accordance with Section 106 of the Trade Code (hereinafter: GewO). Accordingly, the employee is entitled to unilaterally determine the employee's obligation to perform based on type, time and place. Since in the vast majority of employment contracts the content of the employee's services is only outlined in terms of the framework and the employer has to determine the content of the service to be provided by the employee on a daily basis by issuing work instructions in order to specify the obligations from the employment contract, this legal requirement is of outstanding importance.

The employer's fundamentally very broad right to give instructions is restricted in Section 106 of the GewO to the extent that unilateral work instructions must necessarily correspond to “fair discretion”. The preservation of the equitable discretion also regulated in Section 315 of the German Civil Code (BGB) requires that the essential circumstances of the individual case have been weighed up and that the interests of both sides have been appropriately taken into account. This means that the employer is obliged to take the employee's interests as well as his own into account sufficiently.

Violation of reasonable discretion

However, it is not uncommon for employers to exceed the limits of the reasonable discretion described above when issuing work instructions. In such a case, the question arises for the employee as to whether he must comply with this unreasonable work instruction or whether he can refuse to perform the work without losing his right to remuneration.

According to the recent opinion of the Federal Labor Court, which has been followed by numerous lower courts (see above), the employee does not have such a right to refuse performance. Accordingly, even an unreasonable instruction from the employer has at least a temporary binding effect on the employee. This binding effect can only be lifted with the help of a legally binding judgment - and therefore after a dispute that may last several years. This legal view is essentially based on the requirement in Section 315 Paragraph 3 Sentence 2 BGB, according to which unreasonable work instructions can or must be reviewed by labor courts. Furthermore – according to prevailing case law – the employment relationship is significantly influenced by the obligation to follow instructions. For this reason too, if the work instructions are “merely” unfair, an employee may not refuse to perform work without first going to court.

According to this prevailing view, the principle of “tolerate and liquidate” applies. This leads to the following result: The employee may not ignore an unreasonable instruction, but must take legal action against it. Only after a legally binding determination of the unfairness of the work instructions may work be refused. However, if the employee does not comply with the work instructions without a legally binding determination, the employer may in principle refuse to pay him remuneration even if the work instructions are subsequently determined to be unfair.

outlook

This BAG jurisprudence has become more established in recent years - despite numerous opposing voices in the literature. Now the LAG Hamm has expressly contradicted the BAG with its ruling of March 17, 2016. In its ruling, the court assumes that in the event of an unfair employer instruction, the employee can refuse to perform work and still not lose his right to remuneration (default in acceptance). This shifts the risk of unfair employer instructions from the employee to the employer.

An appeal was lodged with the BAG against the judgment of the LAG Hamm (file number: 10 AZR 330/16). This means that the judges at the Federal Labor Court must once again deal with the question of the lack of a right to refuse performance in the event of unfair work instructions - which has been much criticized in the literature at least. It remains questionable whether the highest German labor court will be convinced by the arguments from Hamm and give up its opinion after just four years.