A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Even those of us with zero football knowledge will most likely know of the shenanigans at a Chelsea FC game this season.
Chelsea’s goalkeeper, Kepa Arrizabalaga, (commanding a world-record transfer fee for a goalkeeper at circa £70 million) refused to follow his manager Maurizio Sarri’s orders of a substitution during the Carabao Cup final versus Manchester City.
Kepa had been noticeably suffering from cramp during the match and had already played the full 90 minutes. With the game having gone to extra time, the score still nil-nil, and a penalty shoot-out looking likely, Sarri wanted to bring on Chelsea’s substitute goalkeeper, Willy Caballero. However, Kepa was not for moving! After some vigorous finger-wagging, Kepa responded to his manager’s repeated requests to come off the pitch with screams of “no”, forcing Sarri to back down.
Kepa stayed on, Caballero didn’t get his chance, and Chelsea lost the game 4-3 on penalties. It certainly gave the pundits something to talk about; the consensus being that Kepa had undermined Sarri’s leadership and so should leave the club. Not surprisingly, with a price tag with as many noughts as Kepa’s, he did not “walk” but was fined a week’s wages, and all was settled.
The situation has been put down to a “misunderstanding”. For those of us with lesser price tags to our name, the interesting issue arises; when an employee or worker fails to follow managerial instructions, what are the penalties or causes of action available for such insubordination?
In an employment contract, there is an implied term that employees should follow lawful and reasonable instructions. The contract, at its purest terms, sets out that an individual will carry out certain tasks and, in consideration of these tasks being carried out, will receive payment from the employer.
If they don’t perform these tasks, then surely the contract should fall away? Can the employer dismiss the individual?
An employer can dismiss a worker on the grounds of misconduct for failing to carry out reasonable instructions. However, if that employer is to avoid an unfair dismissal claim (subject to the employee having two years’ continuous experience), the employer should take account of the following;
- Does the contract permit the employer to ask the employee to carry out that task?
- Is there custom and practice that employees carry out said task?
- Was it a reasonable instruction?
- Was the refusal reasonable?
One of the earliest cases we have for guidance dates back to 1978 in the case of Redbridge London Borough Council v Fishman in the Employment Appeal Tribunal (EAT). It concerned a teacher claiming unfair dismissal after refusing to carry out additional duties that, allegedly, took her away from the core role of her post. The EAT reported that although contractual rights and duties are not irrelevant, they are not of first importance. Essentially, the overriding themes of ‘fair’ and ‘reasonable’ must be put in play to sharpen the rather blunt instrument of the contract. The instruction itself must be fair, and the refusal must be reasonable in the circumstances.
In another EAT case from 1981, Union of Construction, Allied Trades and Technicians v Brain, an information officer was asked to sign an undertaking that would make him liable for anything written in articles released over which he had no control. He refused to sign and was dismissed. The EAT held that first, the instruction to sign the undertaking was unreasonable and second, his refusal was reasonable.
To finish with a more recent case from 2014 in Northern Ireland (first instance only), Rene Gerd Maalouf v Teletech UK, Mr Maalouf was dismissed for eating a packet of nuts at his desk. He worked in an open plan office, his colleague nearby had a severe nut allergy and the team had been told repeatedly that they were not allowed to eat nuts in the office. There were posters around the office to remind staff and the message was reiterated in team meetings. The tribunal held that the dismissal was fair as the instruction not to eat nuts was reasonable.
Where does this leave you if one of your employees has a ‘Kepa’ moment? When is it appropriate to dismiss an employee if they fail to follow instructions? In addition to the key principles set out above, the other key issues to consider are:
- Are there any other factors at play?
The instruction may be reasonable, but is the refusal to obey due to other factors; does the employee have a disability that prevents them from carrying out the instruction? If yes, a dismissal could become a discrimination issue. If there is an underlying disability, address it and consider reasonable adjustments before any drastic and potentially costly measures!
- Is dismissal the only option?
A dismissal should always be the last resort, especially if the employee has over two years’ service. It is tempting to jump straight to dismissal rather than issuing warnings and being clear about expectations, as well as what will happen going forward if there are further refusals in the future. Appropriate cases of dismissal include where there is an element of danger involved, either to the employee or their colleagues (as in the case with the nut allergy). However, it is important that the risk is clearly assessed and noted so as to prove, if necessary, that that instruction was reasonable and, conversely, the refusal was unreasonable.
It is tempting to ask in the Kepa case, whether another goalkeeper without such a large price tag on their head would have been treated so leniently! Consistency of treatment for most ‘normal employers’ is key. It would be hard to defend a dismissal when an employee has refused to carry out an instruction when both parties know that another more popular or successful employee, was not disciplined in the same circumstances.
- Be clear about expectations
Are employees aware of what is being asked of them, both before starting their role and during the role? In the case of Mr Maalouf above, the employer had made it crystal clear through various mediums that no nuts were to be eaten. However, expectations might not always be clear, especially if the instruction is a negative one, such as “do not give the security code on the door to anyone”. Job descriptions, line management, and team meetings help with this and improve understanding between both parties.
For more information on this article, please contact Sarah Harnett.
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