Saying ‘No’ to your employer / Refusing to perform a particular task(s)

For many of us, the thought of saying no to our employer fills us with dread. We can spend hours, days even, wondering if we should - is it really a problem, how should we put it, and when would be a good time. We’ll often talk ourselves out of it because we hate confrontation, don’t want to cause a fuss, and, maybe, in some cases, we’ll have convinced ourselves that if we say anything we’ll be dismissed.

It’s normal to think like this but, if something is causing you real worry it won’t go away on its own, you’ll have to resolve the matter. Knowing your employment rights is a good place to start.

The first thing to do is dig out your contract of employment. You will already know that you must receive a written statement of particulars (contract) within 8 weeks of your start date. Your contract sets out your duties and responsibilities (what is expected of you).

Your contract is a legal document, it is an agreement between you and your employer. However, bear in mind, by necessity, it will include a number of implied terms (reasonable instructions).

Employees are subject to well-established implied terms, obliging them to obey the lawful and reasonable instructions of their employer. There is also a duty on you to be adaptable. As with the duty to obey, many contracts will include an express clause that allows the employer to make changes; for example, to their employee’s duties, working methods, or place of work. Even without such a clause, it is implied that an employee should be adaptable to the directions of the employer.

Implied terms as a nanny might be you are expected to be honest and trustworthy, loyal to the family, and even fun! But you’re unlikely to see such terms written down. That said, all expectations must be consistent with the terms of your contract and in keeping with the job you are required to do. For example, a reasonable expectation might be that should your charge spill her drink on the kitchen floor that you mop it up but it's unlikely your contract will state “mop up all spills”. Similarly, there might be an expectation that you periodically sort clothes that your charge(s) no longer wear, has grown out of but, again, unlikely to appear in the contract / written terms.

All requests, written or implied, are subject to a test of reasonableness.

Key advice: Please make sure you read and fully understand your contract before you sign it. If in doubt you should seek clarification from your employer or independent adviser such as your membership association. Disputes can be difficult to rectify after signature which indicates agreement.

Should something happen that you’re not happy about e.g. your employer is constantly requiring you to work late, regularly asking you to run personal errands for them, leaving household chores for you to do, and so on, before speaking to them you should consider:

  1. Is the particular issue addressed in your contract?

  2. Why do you object to this instruction, why does it feel unreasonable?

  3. What are the likely implications if you refuse?

Is the particular issue addressed in your contract?

If the issue is mentioned in your contract and you have signed it, you have indicated that you are accepting of the term and that you will comply. However, if circumstances have changed and as a consequence, the particular task/instruction is no longer feasible/reasonable, you do have a right to raise the issue as a concern and request that a particular part of your contract is amended/renegotiated. Warning, your employer is under no obligation to agree.

Why do you object to this instruction, why does it feel unreasonable?

If the issue is not mentioned in your contract/job description and you object to the instruction, be clear in your mind why you are not happy. If you are unclear in your own thoughts it's unlikely you’ll be able to articulate your objection(s) to your employer. It’s also worth considering at this point – is there a possible compromise that you could suggest? For example, if the problem is that your employer is constantly late home and this leaves you frustrated and unable to make plans of your own, might a way forward be to suggest your hours are changed to accommodate your employer’s lateness? Obviously, this would mean your employer would have to adjust your pay accordingly but could resolve the issue and avoid possible escalation of bad feelings on either side.

What are the likely implications if you refuse, when is saying no to your employer a possible breach of contract?

You are expected to carry out the terms of your contract of employment and, to carry out all reasonable instructions issued by your employer. Failure to do so could potentially put you at risk of being in breach of contract and subject to dismissal without notice on grounds of gross misconduct. It is therefore imperative that, before you decide to say no to your employer/refuse to carry out an instruction, you seek professional advice.

There are, of course, obvious circumstances where it may be appropriate for you to refuse to carry out an instruction / agree to a request. For example:

  • duties for which you do not have adequate knowledge or training

  • matters of health and safety which could potentially put you, the children, or others at risk

  • illegal activities – for example:

  • using defective recalled appliances and/or equipment

  • administering non-prescribed medication

  • driving an uninsured vehicle

  • ignoring COVID-19 regulations etc.

You are entitled to disregard an instruction on the basis that it is unreasonable. However, as already said, you should always seek advice before considering such action.

If as a consequence of your refusal to obey an instruction, perform a task, you were to be dismissed, Employment Tribunals considering ‘disobedience dismissals’ will focus on:

  1. whether the instruction given was lawful

  2. whether the instruction was reasonable

  3. whether the instruction is consistent with the employee’s contract and job description; and

  4. the reasonableness of the employee’s refusal to obey

Employers must tread carefully if they are considering dismissal for willful refusal to carry out a reasonable instruction(s).

Trust and confidence is a well-known implied term, particularly in the context of employment relationships. In essence, an employer must not, without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. The range of claims which could fall under breach of mutual trust and confidence is broad and covers any number of employment issues. Overly oppressive decisions to dismiss an employee who is considered outspoken and disobedient may be subject to challenge for breach of trust and confidence.

In cases of constructive dismissal, where the employee has not been dismissed but has reluctantly resigned, the question is less about whether the instruction was unreasonable, but whether the employer was acting in breach of contract which made the employee’s position at work impossible to continue. Did the employer breach their duty of care towards their employee?

Key advice: As shown above, there are occasions when you do have the right to say no to your employer. However, it is rarely a simple issue and seldom easy. Please, NEVER resign your post without seeking legal advice. Unfair Dismissal and Constructive Dismissal are not straightforward claims to make - when all things are considered, you may not have the claim you think you have.

BAPN issues this information for advisory purposes only. You should not act solely on the content of the information above. Employment disputes are complex, and you would be unwise to act without seeking professional advice first.


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