Employer’s instruction right

Employer’s instruction right / Direktionsrecht

January 30, 2025

The employer's instruction right is stipulated in the employment contract as well as by law in Sec. 611a of the German Civil Code (BGB) and Sec. 106 of the German Industrial Code (GewO) and is the employer's right to determine or specify the employee's performance obligations with regard to the type, content, place and time of performance. It is one of the most important elements of the mutual rights and obligations in the employment relationship and may only be exercised at the employer's reasonable discretion, i.e. after assessing the circumstances of the individual case and the principle of equal treatment and taking appropriate account of the interests of both parties (see Sec. 315 (3) BGB).

Scope of the right of instruction

The actual content of the work performance owed by the employee, as well as the temporal and local conditions of its fulfillment, are only rudimentarily defined in the employment contract with the help of keywords and require concretization by means of instructions from the employer in the course of the employment relationship. The more vague the information in the contract, the more far-reaching the scope of the instruction right. According to Sec. 106 sentence 2 GewO, the right to issue instructions also relates to the order and conduct of the employee in the company. In terms of time, the instruction right includes regulations relating to the location and distribution of working hours and breaks, as well as ordering work on Sundays and public holidays or day and night work.

The employer's right to issue instructions with regard to the determination of work duties requires constant exercise and adjustment and does not expire if exercised once. Nor is it restricted by the fact that the employment relationship is carried out under the same conditions over a longer period of time (even several years) and the employer does not exercise their right to issue instructions regarding a change in activity during this time. Nevertheless, the employer can issue instructions at any time that change the conditions for the future.

Within the scope of the instruction right, the employer is entitled to oblige the employee to participate in discussions relating to the objectives specified in the relevant law, in particular to prepare or issue orders or to object to non-compliance with them. The employee can also be obliged to take part in training and information events insofar as they relate to the content of the contractually owed work performance.

Limits on the right to give instructions

The instruction right can be restricted by law (e.g. General Equal Treatment Act AGG, occupational health and safety laws), collective agreement, works agreement or employment contract. Another limit to the right to issue instructions is the employee's general right of personality and the duty of consideration under Section 241 (2) BGB. Due to this duty of consideration, the employer may be obliged to change a previous instruction, for example if the employee's performance capacity changes for personal reasons and they are no longer able to perform certain tasks.

The employer is not permitted to issue instructions that change the content of the contract, such as the amount of remuneration and the amount of work (duration of working hours) agreed in the employment contract. The provisions of the employment contract also limit the right to issue instructions to the extent that the remuneration group specified therein represents the reference for reasonable activities: The employer may therefore not assign tasks to the employee that do not correspond to the characteristics of their remuneration group or job description (e.g. commercial employee may not be assigned to cleaning tasks). However, this can be extended by collective agreements, so that activities classified lower in the collective agreement can also be assigned (exception if individually unreasonable, e.g. in the event of a reduction in income of more than 37.6%).

Specific provisions in the employment contract that expressly refer to the instruction right can also limit its extent. The ordering of short-time work cannot be based solely on the right to issue instructions, as this constitutes a restriction of the contractually agreed employment and remuneration obligation. However, the employment contract, a collective agreement or a works agreement may contain a respective authorization of the employer.

Legal consequences of unreasonable instructions

If the employer issues the instruction on the basis of an unreasonable discretional decision, it is not binding for the employee. If the employee does not wish to follow the instruction voluntarily, they must inform the employer of this within a reasonable period of time (good faith, Sec. 242 BGB). In this respect, however, the employee acts at his own risk with regard to the classification of the instruction as non-binding. If an instruction exceeds the above-mentioned limits, in particular those of the employment contract, the employee has a right of retention, i.e. they can refuse to work without this justifying termination by the employer.

The employee can claim the unlawfulness of an employer's instruction in an action for acknowledgement before the labor court if he has a legitimate interest in the acknowledgement pursuant to Sec. 256 of the German Code of Civil Procedure (ZPO). In the case of temporary instructions, such legitimate interest only exists during their validity. Otherwise, the employee can also bring an action for contractual employment, which, if successful, does not prevent future changes to instructions by the employer. As long as the invalidity of the instruction is the subject of legal proceedings, the employee does not have to comply with the instruction until the court decision becomes legally valid. The employer's instructions are only subject to review in court for compliance with the contractual and statutory limits and for the equitability of the discretionary decision, with regard to which the employer bears the burden of presentation and proof.

If the instruction is based on an invalid provision, it is void and does not have to be complied with by the employee.