Working Life > Company > Managerial Authority

The Employer's Directive Authority, or Managerial Authority

Definition, Explanation

Legal basis of Germany's directive authority is § 106 Gewerbeordnung. According to it, the employer has the right to issue directives to the employee and to employ him as the changing company's requirements demand. What must be complied with in doing so are the duty to perform, contracted and defined in the collective agreement or the company agreement or the employment contract, as well as the laws and the consideration of moral principles violation definitions according to § 315 BGB. That constitutes the framework conditions for directives: Within these regulations, the employer may autonomously impose guidelines, without the employee needing to agree to them.

The employer violates directive authority law if they do not comply with that framework. Unlawful directives are not obligatorily to be followed. There must not be any dismissal based on reasons of such kind.

Extended directive authority, however, enables the employer to issue such directives that are not part of duty to perform defined in the employment contract. The essential prerequisite for this is, though, that the event necessitating the directive is not foreseeable or is not within the employer's area of responsibility, or financial damage is impending. That includes, for example, directing over-hours for processing material that has been delivered late because of a strike action while a client has to be provided with the product in time.

Directives of the following kinds are allowed:

• Kind of work
• Place of work
• Working hours, over-hours, scheduling of working hours, break regulations, vacation, company closedown
• Quality of work
• Transferring of work in case of sickness of a colleague
• Rules of conduct (e.g. smoking ban or kind of clothes)

Not allowed are:

• Transferring the employee to a job with lesser remuneration
• Assigning of lower-value work, even with equal payment
• Cutting of working hours
• Assigning an employee work that would force him into an avoidable moral conflict (e.g. assigning a doctor a pregnancy termination)

For the latter directives to be realized, the only possible ways are a dismissal with the option of altered conditions of employment, or a transfer of the employee.

Tips, Checklist

For the employer:

• Before issuing a directive, carefully consider the individual circumstances and take into account the interests of the employee (for instance, mothers and child-care hours). A directive must be in line with “equitable discretion” (§ 315 BGB)
• Take into account disablement of the employee
• Adhere to
  • basic rights, as personal rights, freedom of conscience, equal treatment principle
  • family bonds and family duties of the employee
• When making employment contracts, be sure not to limit your own action flexibility such that you would be no longer able to direct the kind, place and time of your employee's work
• Make sure that any newly assigned task is in line with the employee's qualification level and status
• Be aware which executives really have directive authority
• If the employee does not comply with your directives, you can enunciate a warning letter and dismiss the employee and claim damages against the employee

For the employee:

• Have a look into your employment contract, whether and in what way capital changes of your activity and of the conditions are allowed. Even if work in another place is contracted, you will not necessarily have to accept longer ways to work (“equitable discretion”)
• Do not prematurely judge newly assigned work low-valued. Often, you will be able to learn something, or it can be thought as job-rotation
• If the employment conditions are considerably changed and are no longer covered by the employment contract, insist on a dismissal with the option of altered conditions of employment
• Get advice and support from your works council
• In case of unlawful directives, you can file a complaint to the works council, respectively even refuse to work. You have to be careful with work refusal, for you will risk an Abmahnung and subsequent dismissal, if the directive is found to have been complying with the law
• In case of dispute, or in unclear situations, be counselled by a lawyer
• Already in the making of the employment contract, you should make sure that contents and tasks of your job are defined. This way, you keep the employer's action scope at a nice level
• If you plan to take legal action, you should comply with the employer's directives as long as no judgement has been delivered

For the works council:

• Supervise the employer's issued directives regarding compliance with employment contracts, collective agreements, company agreements, company's practice (certain conduct is the usual) and law

Last update: 02/24/2010