Right to issue instructions in temporary employment
When employers issue instructions to their employees, this is referred to as the right to issue instructions, sometimes also as the right to issue directives. In terms of content, both terms mean the same thing. Employers who use temporary workers for a certain period of time are also authorised to issue instructions to them. What is often unclear: What are hirers allowed to instruct and what not?
Employers have the right to issue certain instructions to their permanent employees and the temporary workers they employ, which the employees must then follow. In doing so, they must remain within the limits of their right to issue instructions.
The right to issue instructions and its limits
The right to issue instructions is set out in Section 106 of the German Industrial Code (GewO). According to this, the employer may issue instructions with regard to
- the work content
- the place of work
- the working time
- the order and behaviour of employees in the company
However, the employer's right to issue instructions also has limits. If the above-mentioned working conditions are contractually or legally stipulated, the employer must these regulations or agreements take precedence before the employer's instruction.
The right to issue instructions is therefore limited by:
- Laws
- Labour or collective agreements
- Regulations in a works agreement
- Provisions in the employee leasing agreement
This means that if the employer orders something that contradicts a legal regulation or a contractual agreement, the temporary worker does not have to follow the instruction. They can then invoke the statutory regulation or the contractual agreement.
For example, employers may not instruct employees to disregard health and safety regulations. If the employer were to do so anyway, the temporary worker would be entitled to object to the instruction. The same applies if the instruction is contrary to contractual agreements on the content of the work or working hours.
When employing temporary workers, the decisive factor is also what the Employee leasing contract agreed between the lender and the hirer. The more precisely the temporary employment contract describes which activities the temporary worker is to carry out for the hirer, where they are to be deployed and how many hours they are to work, the less room for manoeuvre the hirer has to exercise their right to issue instructions.
For example: Before you instruct a temporary worker to work overtime, you should check whether the temporary employment contract contains any provisions on overtime. If in doubt, the hirer and the temporary employment agency should agree again on how to deal with increased labour requirements and any necessary overtime.
Observe the "equitable discretion" criterion
In addition, employers must issue their instructions in accordance with "reasonable discretion" meet. What does that mean? Employers must always act within a certain margin of discretion when giving instructions. The instructions must not be arbitrary, disproportionate or unreasonable. This applies to all instructions given by the employer - including those relating to the content of work, place of work, working hours and the order and behaviour of employees in the company.
When issuing instructions, employers must weigh up the interests of the company against the interests of the employee. The decisive factor here is whether the instruction - in relation to the specific situation - is proportionate and reasonable for the employee.
Which persons in a company are authorised to issue instructions?
The employer or the management of a company automatically has the right to issue instructions. However, the management can transfer its right to issue instructions to other persons in the company, such as division or department heads. Direct superiors should always have the authority to issue instructions to their subordinates.
Do you have any further questions regarding the right to issue instructions? Contact us, we will be happy to help you!