The Trust has responded stating that staff were paid above market rate for Windsor, and the guided tours are voluntary and as such they shouldn’t be paid extra for them. The action the employees are taking is to 'work to rule' by refusing, for example, to undertake these voluntary unpaid tasks.
Working to rule is a risky approach to take. The Employment Rights Act (1996) only requires an employer to provide a statement of 'the title of the job which the employee is employed to do or a brief description of the work for which he is employed'. As a result, most contracts only contain broad statements of what someone’s duties are or merely say that 'duties are commensurate' with their job title.
Even if there is a job description, the final clauses often recognise the requirement for flexibility when working, listing 'such other duties requested of the employee'. Fixed defined roles are rare, especially in a skilled UK workforce who are often expected to decide on what the tasks required are and how they should be done.
This built-in flexibility is good for an employer. Working to rule may expose employees to allegations that they are in some way refusing to do part of their core contractual duties. In short, the staff member may be refusing to do their job. In the absence of sanctioned strike action, refusal to follow a lawful order in employment can be a disciplinary issue, which could be seen as an act of deliberate (gross) misconduct allowing for summary dismissal.
The Royal Collection Trust has stated that the tours undertaken by staff were voluntary. Therefore the above does not apply to this situation. It does, however, exemplify the converse risk for the employer in relying on staff undertaking duties outside of a formal job description. Employees may cease to do such voluntary tasks without fear of any sanction, especially if they are not reflected in their remuneration.
Voluntary duties are by their nature ones you cannot demand employees do. It is possible sometimes to argue that staff undertaking voluntary tasks for a long period have accepted these as their contractual duties, but only if this does not conflict with any written statement. Even then the arguments are problematic, and in this instance the Trust has had to provide people to cover the gap in services.
From an employer’s perspective flexibility is vital. Often small organisations can only function if it exists. For this reason contracts and job descriptions should reflect this requirement. Statements of duties should be reviewed periodically to ensure any voluntary tasks are incorporated. This should then limit the scope of threats to work to rule. Conversely it also allows for a more transparent discussion regarding pay. Good will may make a relationship work, but reliance on it could be bad for business.
David Buckle is an employment consultant at Cubism Law
