The employer has the right to give instructions. This results from the nature of the employment relationship. This is characterised by the fact that the employee provides services for another person according to the instructions of the latter. The basis for the right of direction is therefore the employment contract. However, since this cannot fully reflect the duties of conduct and performance, the employer is entitled to specify these duties in more detail by means of instructions when the work is carried out. A legal regulation can be found in § 106 GewO. According to this, the employer can determine the content, place and time of the work performance in more detail at his own discretion.
Right of Direction: Limits
The employee must always follow the instructions of the employer. However, the employer is subject to limits when exercising his right to give instructions. These limits may, for example, result from the law, collective agreements, works agreements or from agreements in the employment contract itself. Furthermore, the instruction must be given at the employer’s reasonable discretion. This means that the employer must always take the interests of the employee into account appropriately. If the employer exceeds the limits of the right of direction, the instruction is not binding on the employee, so that he or she may refuse to comply with it. He may also take action against the instruction before the labor court.
The right to issue instructions plays a role above all in the case of transfers. The employer can only transfer the employee to another place of work by means of the right of instruction under certain conditions. This is the case, for example, if the employment contract only contains a general description of the place of work or the employer has reserved the right to transfer in the employment contract (transfer clause).
Participation of the works council
The employer must also observe the participation rights of the works council. If an employee is transferred, the works council must be involved in accordance with § 99 BetrVG. The works council may grant or refuse its consent. The latter however only if it has a reason for it. Among other things, this is the case if the employee concerned or other colleagues are disadvantaged.