How to tackle a Tevez!

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11 October 2011

These days it seems that Carlos Tevez is never far from controversy. During a recent Champion's League match against Bayern Munich, the Manchester City footballer apparently refused to come on as a substitute, ignoring his manager's request (although he put it down as a misunderstanding).

Whilst his antics may not come as a surprise to many, the Argentine striker's apparent refusal to come on as a substitute appears to be a clear example of refusing to obey an employer's lawful and reasonable instruction - albeit in an unusual situation!

So, if you are an employer and have an employee on your hands who is refusing to follow an instruction, what steps can you take?

The first thing to establish, says Burges Salmon employment solicitor Ian Taylor, is that the instruction you are giving is both lawful and reasonable, because an employee would be required to comply with any instruction that is.

As you might expect, an employee is not obliged to obey an unlawful instruction. For example, it would not be reasonable to instruct an employee to refuse to serve a customer because of their race as this would mean that the employee was being required to act in a discriminatory manner on unlawful grounds. However, whether an instruction is unlawful or not, may not always be as clear cut. In a world where businesses are having to operate in increasingly regulated environments, managers may inadvertently give an unlawful instruction to an employee. Managers, therefore, need to be clear about the legal parameters in which they operate.

In addition to being lawful, the instruction must also be reasonable. If you have an employee who is refusing to comply with a request which you consider is reasonable, the question to ask is this: is the instruction consistent with the nature of the employee's job description and contract of employment?

The reason which employees frequently give for refusing to obey an instruction is that the task in question doesn't come within their role. When establishing whether your instruction is reasonable, therefore, you should be clear that you are asking your employee to do something that is within the scope of their job description.

This is not always straightforward, particularly when the nature of the job has changed over time. This can often be the case where technology is playing an increasingly important role. Asking an employee to work with new technology (introduced for operational efficiency reasons) is likely to be reasonable.

Changing an employee's workplace location is another area of particular difficulty; is an employee who refuses to move to work at a different office or site disobeying a lawful instruction? Employment contracts should state where an employee is based and it may well be unreasonable to require an employee to work from a different location if their journey time is significantly altered or child care commitments become unmanageable. If you do foresee having to relocate employees, you should include a relocation clause within your contracts of employment which will make the process easier to manage.

If you're satisfied that the instruction is both lawful and reasonable and the employee is still refusing to comply, what can you do to resolve the issue?

Firstly and most importantly, identify the outcome you want to achieve. What is the effect of the employee's refusal to follow an instruction - is it serious or minor? How does it impact on other employees and/or the operations of the business? Is there more than one employee involved? Is the refusal on-going? How important is the employee in question to the business?  Addressing these questions and identifying the outcome you want should help you to decide what steps to take next.

It may be that the situation warrants formal disciplinary action – this will be particularly pertinent if there is a danger that other employees may behave in a similar fashion if the situation isn't seen to be taken seriously. However, you must be careful not to have a knee jerk reaction to an employee's refusal to follow an instruction, even in a seemingly serious situation. Disciplinary procedures should always be followed. The first step is, therefore, to check your  disciplinary policy. A standard disciplinary policy should list a failure to obey reasonable instructions as an example of misconduct (depending on the nature of refusal, it is possible that it could constitute gross misconduct). This would permit the employer to initiate disciplinary proceedings. An employer should ensure that it conducts any disciplinary action in line with its own disciplinary procedure, ACAS best practice and only after a reasonable investigation.

However, it may not always be appropriate to initiate disciplinary proceedings. Not only can they  be disruptive and time-consuming, this type of scenario often arises from a misunderstanding between the manager and the employee and sitting down with the employee in question for a quiet chat is often the quickest and most constructive way of understanding and addressing the issue.

Following the Tevez incident, Manchester City has suspended the striker for up to two weeks, pending an investigation. When asked for his reaction to the events, his manager Robert Mancini said, "For me he's finished. I cannot go on with him." Manchester City bosses face the difficult decision of balancing a seemingly clear disciplinary issue with trying to keep one of their star players happy. Whether their desire to set an example to other players will take precedence over pressure to get the prolific goal scorer back on the field remains to be seen.

A version of this article was first published by HR Zone on 10/10/11

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