Refusing to play ball: Carlos Tevez and dealing with failure to follow instruction

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02 November 2011

After allegedly refusing to warm up as a substitute during a Champion's League match against Bayern Munich, Manchester City footballer Carlos Tevez has been spared dismissal after much speculation and discussion about his behaviour. Indeed, many who saw his apparent refusal to obey his manager’s instructions as indefensible will be asking why Tevez has been permitted to keep his job when many of us could expect to be sacked for similar behaviour.

So what should HR directors do if they find themselves faced with an employee refusing to do as they've been instructed?

Firstly, it is important to establish that the instructions issued are both lawful and reasonable.  Staff members are not obliged to follow them if not.  Asking an employee to discriminate against a fellow employee, for example, because of their gender, would not be lawful.

However, determining whether an order is lawful may not always be easy. In an increasingly regulated business environment, the legal parameters around a wide variety of workplace issues are often changing.  Managers, therefore, need to be careful not to give unlawful instructions to a worker without realising it.

Instructions must also be reasonable. Common sense should dictate what falls into this category, but if in doubt a good point of reference is the employee's job description and contract of employment.  Workers often claim that certain activities don’t fall within the remit of their role.  Therefore, although neither will be exhaustive, both the job description and the contract will provide guidance as to the types of activity that are deemed reasonable for their role.

Nevertheless, deciding whether an instruction falls within the scope of an employee's job description or contract of employment is not always straightforward. This is particularly true if the nature of an employee's role has changed over time - something that is often the case as business processes become increasingly automated and workforces more streamlined. It is, therefore, sensible to make sure that job descriptions are reviewed regularly to ensure they are an accurate representation of the employee's role.

If an employee is refusing to follow a lawful and reasonable instruction, you should consider what outcome you would like to achieve. Ask yourself what the wider impact of the worker’s refusal to follow the instruction in question might be.  You should also consider the potential impact on other employees, whether more than one staff member is involved in the situation, and how important the employee or employees are to the business.  Considering these questions should help you to decide how to proceed.

You could instigate formal disciplinary action, or, depending on the circumstances, it may be more appropriate to have a ‘quiet chat’ to resolve the situation. Often, having a chat is the quickest and most constructive way both to understand the issues and address them in the most effective manner.

However, the situation may warrant formal disciplinary action, particularly if you feel that other employees may behave in a similar manner.  Formal action will demonstrate that the behaviour is being taken seriously.

Disciplinary procedures should always be followed carefully, so be sure to check your disciplinary policy. A standard disciplinary policy should explain that a failure to obey reasonable instructions will be considered an example of misconduct.

As the Tevez case illustrates, however, there are often other considerations that influence an employer's decision. So avoid making any snap decisions and tread carefully when dealing with this type of situation, to ensure you have considered the wider picture.

For Manchester City, the decision may owe more to commercial considerations than to legal ones.

This article first appeared on www.hrmagazine.co.uk on 01/11/11

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