Employers have the legal right to give lawful and reasonable directions to their staff. No question.
An employee who wilfully disobeys a lawful and reasonable direction by their employer breaches their contract of employment, pure and simple.
Depending upon the circumstances, such a breach by an employee can justify disciplinary action or even termination.
An efficient way for employers to direct staff is to embed them in written policies, that are communicated to all staff. Written procedures are also helpful to provide clarity as to how policies will be enforced.
For example, a dress code. Say, no visible ear-rings, except in ears. This is set out in a written policy. A written procedure then defines the steps that the employer will take if a staff member turns up for work in breach of the policy.
Issue sorted? Maybe not.
Say an employee turns up for work with a nose-ring, one day. The employer counsels the worker, and issues a warning letter.
But let's say the employer does not strictly follow their own disciplinary procedure in doing this?
Let's say that it happens again, and the employer terminates, as they said they might in the warning letter.
But again, there is a failure to comply strictly with the written disciplinary procedure.
What if the employee then suffers a breakdown as a result of the stress, and will not be able to work in any job for a very, very long time? The estimated loss of income is in 6 figures.
An unfair dismissal claim is a possibility, but that is capped at 6 months wages. The claim can be settled and the employer can get on with business. Right?
Not so quick! An unfair dismissal claim may be the least of the employer's legal worries.
If the employment contract has not been drafted in a way that made it clear that the employer's workplace policies and procedures were not intended to create contractually binding obligations on both parties, the employer could face a breach of contract claim.
And in such a claim damages are not capped.
A long, painful and expensive Court case may be the outcome.
In such a case, all the employer was trying to do was to set a clear policy about how it would exercise its legal right to direct staff about their appearance at work.
But if standard contracts of employment are not carefully drafted the result could be an expensive legal nightmare.
The lesson? All contracts of employment should contain a clause that minimises the chances of your workplace policies and procedures conferring contractually enforceable rights and benefits on your staff.
First published on the Employer Counsel blog.
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