• Impact date: 22 February 2012

The Federal Labour Court (Bundesarbeitsgericht) has decided, contrary to existing case-law, that an employee cannot just defy unjustified instructions given by the employer. Instead, the employee is obliged to take legal action against the employer’s unjustified instructions.

In the meantime, the employee has to follow the employer’s unjustified instructions, until the labour court decides by final judgement that the instruction was unjustified and therefore non-binding.

With this decision the Federal Labour Court has deviated from established case-law in Germany, namely that an employee is not bound by unjustified and invalid instructions given by the employer.

This change in case-law can lead to severe consequences for the employees. According to the new ruling of the Fifth Chamber of the Federal Labour Court, an employee could face the risk of receiving a written warning or even a dismissal if he refuses to follow the employer’s unjustified instructions.

(BAG, decision dated 22/02/2012 – 5 AZR 249/11)