What to do when you're an employer facing an employee refusing to perform their duties.

You may have seen the recent coverage of Carlos Tevez' refusal to play in Manchester City’s game against Bayern Munich last week. It has now been reported that Tevez was suspended on full pay following the refusal to play and is now due to meet with officials from the club as part of an investigation into the matter.

Whilst football clubs and players may seem quite far removed from the usual ‘employee – employer’ relationship the same considerations do still apply. If you are an employer faced with an employee refusing to perform their duties what can you do?

Disciplinary action

A failure to perform contractual duties or to obey reasonable and lawful instructions may well result in disciplinary action for misconduct being taken against the employee in question. The appropriate outcome will depend on the circumstances and seriousness of the incident and whether the employee has any ‘live’ warnings on their file. It is not a forgone conclusion that every case will, if substantiated, amount to gross misconduct justifying dismissal.

Breach of contract

In addition, the employee’s action could amount to breach of contract – either of express terms (i.e. the employee’s work duties) or the implied term to obey reasonable and lawful instructions. If the employee’s refusal to undertake tasks causes a financial loss, you may consider claiming against the employee for breach of contract – if it can be shown that you suffered that loss as a consequence of the breach. 

However, standalone claims by employers for breach of contract must be made in the civil court and not to an Employment Tribunal (where it can only be pursued by an employer as a counterclaim with a maximum award of £25,000). The need to consider the civil court system may deter employers from taking steps due to the issue fees and costs risks and considerations involved.

A Tevez ‘style’ refusal to work may also justify dismissal for the potentially fair reason of ‘some other substantial reason’ not misconduct. However, you must also consider that although the reason for dismissal may be established (substantive fairness), the dismissal must also be procedurally fair.

Suspension

Tevez is now suspended from work on full pay, something which does occur in the employer – employee relationship. Suspension on pay should be used where it is necessary to enable the investigation to take place or where the employee poses a risk to the business (or clients etc) if they remained at work during that time. It should not be a ‘knee jerk’ reaction to all allegations and it should be made clear to the employee that it is not a disciplinary penalty.

It has been reported that Tevez has said that there was ‘confusion on the bench’ rather than an outright refusal. However, plausible or implausible such explanations may seem it does serve as a reminder of following a fair process to ensure that the employee is made aware of the allegations against them and given an opportunity to state their case in response before any decision is taken.

In some cases, an informal discussion with the individual concerned about their behaviour may be sufficient to resolve the issue and stop it occurring again in the future.

Commercial considerations

In practice, and no doubt in the Tevez situation, more commercial considerations will also come in to play – for example, the impact of the employees behaviour on the employer and its reputation (will Tevez be seen as setting a poor example to other young players?), potential disruption as a consequence of dismissing or claiming against an employee and the need to retain the employee (or player) in the business (or team).

In some situations, such as the Tevez one, if the employee was sacked for gross misconduct the individual could then be released from their contracted obligations and could be engaged very rapidly by another rival organisation (or team). This perhaps is what Tevez wanted to happen!