Right of direction
The employee is on account of the employment contract the employer job performance obligation. In the employment contract, however, only the type and scope of the work to be performed are usually regulated in a very general way, but it does not contain details of the work to be performed. To determine the performance concrete, the employer has an issue instructions, Principals or transit rights with regard to the execution of the job performance ( concrete ). The less it is regulated in the employment contract, the more it is subject to the specification by instructions from the employer. The employer's instructions, as unilateral declarations of intent that require receipt, are of a legal nature.
Since January 2003, there has been a statutory regulation on the right of direction in trade regulations. According to this standard, the employer can determine the content of the work , the place of work and the working hours of the work performance in more detail with regard to all employees at his reasonable discretion . In exercising his right to issue instructions, the employer may, in principle, determine what type of services the employee has to provide. It enables the employer to assign certain tasks to the employee or to withdraw them. The employer must always exercise reasonable discretion when giving instructions. According to the wording of § 106 GewO, it is a unilateral right to determine performance according to BGB , whereby the quantitative scope of the mutual main performance obligations (remuneration and work obligation ) is not subject to the right to issue instructions. Therefore, the employer is not authorized to assign the employee to a job with lower remuneration, even if the previous remuneration is continued to be paid.(1) of the
According to Section 106 (1) GewO, the right to issue instructions also relates to instructions that affect the order and behavior of the employee in the company. This provision concerns the behavior towards third parties and the external appearance of the employee. This includes, for example, wearing uniforms or corporate clothing conventions.
This right to issue instructions has its limits within the framework of the law, collective labor law ( works agreement , collective bargaining agreement ), the employment contract and the works council's right of co-determination ( BetrVG); their regulations always have priority (Section 106 (1) GewO). Instructions can have a collective reference and must therefore be fair . Unreasonable instructions do not have to be followed by the employee, not even temporarily. In particular, they are not allowed to reprimand employees for permissibly exercising their rights. The right to issue instructions is subject to the control of the courts . In particular, the basic rights of the employee must be observed.
A change in the originally agreed rights and obligations through so-called concretization in a one-sidedly unchangeable contract does not occur solely because the employee has been deployed in the same way for a longer period of time. In addition to the mere passage of time, there must be special circumstances that make it clear that the employee should only be obliged to carry out his work unchanged. If the limit of the right to issue instructions is exceeded, the employee may exercise a right to refuse performance in accordance with default of acceptance ( BGB) if he then does not assign the employee any other work.(3) BGB. The employer is in
The right of direction of § 106 GewO does not entitle the employer to issue instructions that contravene mandatory criminal and public law provisions. For example, a truck driver must not be instructed to exceed the driving times . An instruction from the employer to violate criminal or administrative offense regulations is null and void ( BGB). Also ineffective are immoral ( BGB) or discriminatory ( AGG ) instructions. If such an instruction is not followed, there is no reason for termination , as there is no obligation for the employee to obey an impermissible instruction. If sanctions are nevertheless imposed for non-compliance with an inadmissible instruction, this violates the prohibition of measures laid down in German Civil Code.
Extended right of direction
The extended right of direction obliges the employee, due to his duty to avert damage, to also follow instructions from the employer in an emergency that go beyond the obligations defined in the employment contract. An emergency in this sense exists when an event cannot be foreseen and unavoidable, is not the responsibility of the employer concerned and / or there is a risk of high financial damage (ArbZG) such as an overtime instruction to the receptionist in the hotel because a coach full of guests arriving later than expected due to traffic jams.
- Hanna Brunhöber: The right to issue instructions in the employment relationship . 1st edition. Erich Schmidt, Berlin 2006, ISBN 3-503-09026-6 (254 pages).
- Wolf-Jasper Lehmann: The right of directors of the employer in the public service (= series of publications on labor law research results . Volume 149 ). 1st edition. Publishing house Dr. Kovač, Hamburg 2010, ISBN 978-3-8300-5334-7 (205 pages).
- Dietlinde-Bettina Peters: The employer's right to issue instructions . 1st edition. CH Beck, Munich 2019, ISBN 978-3-406-73798-5 (250 pages).
- Bernd Rüthers: Labor law . 2007, p. 52
- cf. among many: BAG, judgment of 23 June 2009, Az .: 2 AZR 606/03 = NZA 2009, 1011
- Thomas Lakies: Contract drafting and terms and conditions in labor law . 2011, p. 101
- Wolfgang Hromadka , Unreasonable instruction not binding !? NJW 2018, 7
- Bernd Rüthers: Labor law . 2007, p. 120
- among many: BAG judgment of September 15, 2009, Az .: 9 AZR 757/08
- BAG, judgment of January 25, 2001, Az .: 8 AZR 465/00