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Ian Taylor

Burges Salmon

Employment Solicitor

Read more about Ian Taylor

Legal Insight: How to tackle a Tevez

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These days, it seems that footballer Carlos Tevez is never far from the latest controversy.

During a recent Champion’s League match against Bayern Munich, the Manchester City player apparently refused to come on as a substitute, ignoring his manager’s request to do so (although he put it down to a misunderstanding).
 
While his antics may not come as a surprise to many people, the Argentinian striker’s apparent refusal to play as a substitute would appear to be a clear example of refusing to obey an employer’s lawful and reasonable instruction – albeit in an unusual situation.
 
So what should HR directors do if they find themselves faced with a similar scenario?
 
The first thing to establish is that the instructions issued are both lawful and reasonable because staff members are not obliged to follow them if not. For example, it would be neither reasonable nor lawful to tell employees to refuse to serve a customer because of their race as this would require them to act in a discriminatory manner.
 
Whether a given order is unlawful or not, however, is not always clear-cut. In an increasingly regulated business environment, managers may inadvertently end up giving unlawful instructions to a worker without realising it. As a result, it is vital that they keep up to speed on the legal parameters in which they operate.
 
In addition to being lawful, requests must also be reasonable. But if an employee has refused to comply with an instruction that you consider to be just that, the question to ask yourself is this: is the instruction consistent with the nature of the employee’s job description and contract of employment?
 
Lawful and reasonable
 
A common reason that workers give for refusing to obey a command is that the task in question does not fall within the remit of their role. When establishing whether an instruction is reasonable or not, therefore, it is important to clarify whether it comes within the scope of an individual’s job description.
 
But clarifying this situation is not always as straightforward as it seems, particularly if the nature of the job has changed over time – something that is often the case in the wake of the increased automation of business processes. Asking an employee to work with new technology that has been introduced to boost operational efficiency is likely to be deemed a reasonable request, however.
 
Changing an employee’s workplace location is, on the other hand, an area that raises particular difficulties. For example, is a worker who refuses to move to a different office or site disobeying a lawful instruction?
 
Employment contracts should state where each individual is based. But depending on the circumstances, it should be noted that it may be unreasonable to require them to work from a different location, for instance, if their journey time has significantly altered or their child care commitments become unmanageable as a result.
 
Therefore, if it is possible that personnel may need to be relocated at some point in future, a relocation clause should be included in their employment contracts in order to make the process easier to manage when it occurs.
 
But if you have satisfied yourself that the instruction given was both lawful and reasonable and the employee still refuses to comply anyway, what can you do to resolve the issue?
 
Firstly and most importantly, identify the desired outcome. Ask yourself: what is the wider impact of the worker’s refusal to follow the said instruction – is it serious or minor? How does it affect other employees and/or the operation of the business? Is there more than one staff member involved in the situation? Is the refusal continuing on an on-going basis? How important is the employee to the business?
 
Next steps
 
Addressing these questions and identifying the outcome you would like to see should help you to decide what steps to take next.
 
It may be that the situation warrants formal disciplinary action – this will be particularly pertinent if there is a danger that other employees will behave in a similar fashion should the scenario be considered not to have been taken seriously enough. On the other hand, it is important to guard against knee-jerk reactions, even in a seemingly serious set of circumstances.
 
Because disciplinary procedures should always be followed carefully, the first step is to check your disciplinary policy. A standard disciplinary policy should explain that a failure to obey reasonable instructions will be considered an example of misconduct (depending on the nature of refusal, it is possible that it could even constitute gross misconduct). This clause will permit the employer to initiate disciplinary proceedings.
 
Any action should always be taken in line with the organisation’s established disciplinary procedures and ACAS best practice – but only after a reasonable investigation into what has taken place has been carried out.
 
Disciplinary proceedings will not always be appropriate, however. Not only can such activity be disruptive and time-consuming, but refusing to follow an instruction in the first place often arises from misunderstandings between line manager and employees.
 
Therefore, ensuring that the two sit down for a quiet chat about the situation is often the quickest and most constructive way to both understand the issue and address it in the most effective manner.
 
In the wake of the Munich incident, Manchester City suspended Tevez for up to two weeks, pending an investigation. When asked for his reaction to the events, his manager, Robert Mancini, said: "For me, he’s finished. I cannot go on with him."
 
As a result, Manchester City bosses now face the difficult situation of trying to balance a seemingly straightforward disciplinary issue with keeping one of their star players happy. Whether their desire to set an example to other players will take precedence over the pressure to get the prolific goal scorer back on the field remains to be seen.
 
 
Ian Taylor is an employment solicitor at Burges Salmon.
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Ian Taylor

Employment Solicitor

Read more from Ian Taylor
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