Saying ‘no’ to your employer

This guidance is in relation to saying ‘no’ to your employer on terms and conditions of employment, contracts and reasonable instructions.

The contract of employment is an agreement between the employer and the employee which includes several implied duties.

On the employer’s side there is a duty to provide work, to pay wages and to take reasonable care of the employee.

It is impossible for employers to guarantee that no employee will ever be injured at work, but the standard of care which the law requires is that which ‘an ordinary prudent employer’ would take.

When you become an employee, the law states that you should receive a written statement of particulars of employment from the first day of employment. This sets out the duties and responsibilities and line management arrangements for your role.  Since this list is rarely exhaustive, all employees are also required to carry out reasonable instructions.

It is crucial that you check the detail in any contract, job description and list of duties, since these all form the terms of your employment.

If there is a dispute about a particular instruction, difficult questions may arise.

• Is a particular instruction reasonable?
• When is it reasonable for you to refuse an instruction?
• When can an employee say no?
• What are the implications?
• Does saying no mean that you’re striking?

There are no general answers to these questions or to others like them. Each question can be answered only in your circumstance. If you find yourself in this scenario, it is important that you get in touch with Community as soon as possible so that we can help you to resolve the issue and offer advice and guidance.

Breach of contract 

Employees are expected to work for the employer, to co-operate generally and to be loyal. This includes the duty to obey lawful and reasonable instructions. Failure to do this will be regarded as a fundamental breach of contract, meaning you could be dismissed without notice on grounds of gross misconduct.

Employment tribunals 

Employment tribunals considering ‘disobedience dismissals’ focus on three main issues

• Whether the instruction given was lawful.
• Whether the instruction was reasonable.
• The reasonableness of the employee’s refusal.

In assessing the reasonableness or unreasonableness of an instruction from the employer, the tribunal will decide first of all whether the instruction is consistent with the employee’s contract, job description and list of duties.

Can I refuse a request by my employer? 

There are circumstances where it may be appropriate to question or refuse a request.  These include:

• Duties which are not yours or for which you do not have appropriate training to undertake.
• Issues of health and safety.
• Situations which may put you or others at risk.
• Working in conditions that create an unacceptable risk of personal injury.

The risk of personal injury applies to both employees as well as any person who enters the workplace premises such as customers, clients or visitors. Risk can also arise from physical conditions such as defective premises or the working environment. Risk also includes intentional harm caused by a violent person(s) or illegal activities. Therefore, it cannot be fair to require an employee to carry out an illegal or unlawful instruction.

If your employer dismisses you because you refused to undertake an illegal or unlawful instruction, you would normally have had to have been employed for two years for the dismissal to be considered to be unfair and before you are able to make a claim for ordinary unfair dismissal. See our guidance on dismissals for more information.

Under The Employment Rights Act 1996, employees are protected from being dismissed or being subjected to any detriment in several health and safety situations, including:

• Acting as a health and safety representative or being a member of a health and safety committee.
• Where there is no safety representative (or a mechanism for safety representatives to raise an issue with the employer), bringing to the employer’s attention to circumstances which are believed to be harmful or potentially harmful to health and safety.
• Leaving the place of work or refusing to return to the place of work because of reasonable belief there is a serious and imminent danger.
• Taking, or proposing to take, appropriate action to protect themselves and/or colleagues from that danger.

In these circumstances, a dismissal for health and safety reasons is automatically unfair regardless of the length of service. However, before taking action, the best thing to do is contact Community who will be able to offer advice to ensure you are acting in accordance with the law and not putting yourself or your job at risk.

Consultation 

Consultation is essential for good employment relations. It is also a material issue in employment law in situations where the employer has to show that they have acted reasonably. Wherever there is a change to an employee’s contract of employment or working conditions, unless there is a variation clause permitting such changes, there must be consultation with a view to reaching an agreement.

Consultation is very important in health and safety matters. Employers are required to consult formally with health and safety representatives appointed by members of a recognised trade union or, if there is not a recognised union, with the employees directly or through representatives appointed by them. You and your representative should be given sufficient detail about any proposals, and enough time to make a reasoned response.  This response must be considered by the employer before the matter reaches a conclusion.

Does a refusal to carry out an instruction or carry out part of my work amount to industrial action?   

You are entitled to disregard an instruction on the basis that it is unreasonable. Employees can claim protection by indicating that they propose to take appropriate action to protect themselves/others from serious or imminent danger at work.

What is deemed ‘appropriate action’ depends upon all the circumstances.  In particular, the level of danger, what steps can reasonably be taken by the employer to reduce or contain that danger, and whether the employer is offering to take any or all of those steps or to enter into discussions about the problem.

It is crucial to contact Community for advice before refusing to undertake instructions.

If you need help or advice, please contact us at help@community-tu.org or on 0800 389 6332.