In its decision dated 22 February 2012 (5 AZR249/11), the Federal Labor Court dealt with the question of the binding nature of work instructions. This decision has extensive ramifications for employers. Employees, who do not follow unfair instructions, are not entitled to remuneration for default of acceptance. The decision of the Federal Labor Court therefore makes it easier to assign employees new work duties. Apart from any legal costs, employers ultimately no longer have to fear any financial risk in the case of unfair and therefore invalid instructions. Employees are forced to follow the corresponding instructions for the duration of the proceedings in which the unfairness is determined. If they refuse to perform the new tasks, a lower cost risk now exists for employers.
The Federal Labor Court did not make a decision on the second question whether employees, who do not follow unfair instructions, are simultaneously refusing to work. There are doubts about whether an ordinary or extraordinary dismissal would be justified in the case of a refusal to work following unfair instructions. However, if the employer does make a dismissal in such a context and the employee also refuses to perform his new assigned duties, which may be unfair, during the dismissal notice period, the procedural risk for the employer is at least reduced because remuneration for default of acceptance would also not have to be paid in this constellation.
This article can be found in the special edition of the renowned legal journal “Arbeit und Arbeitsrecht” in June 2013 (pg. 373).
*NB - The PDF publication is only available in German