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Legal lowdown: Unethical manager requests

Asking an employee to carry out something that is not necessarily illegal could fall within the category of unreasonable behaviour

Recently the government announced plans to survey workers’ feelings towards their managers to improve job quality and security, making it harder for bad bosses to hide. But what if managers ask employees to behave unethically such as lie, cut corners, or cover up wrongdoings? Where do they stand legally?

A well-established but often unwritten part of every employment relationship is that an employee is expected to comply with any lawful and reasonable request from their employer and co-operate with their employer in carrying out their jobs. This is characterised by the courts and tribunals as an implied duty of co-operation on the part of the employee and if an employee refuses it could lead to a fair dismissal.

However, an employee could not be expected to carry out an illegal or dishonest act and would be justified in refusing. For example, asking an employee to drive a company vehicle without insurance or asking an accountant to falsify the company accounts would be clear breaches of contract by the employer.

A similar situation arose in Morrish v Henlys where an employe driver refused a request from his manager to lie about the amount of diesel that he had put in his vehicle, so that it would give a more favourable view of the company’s monthly fuel invoice. The EAT decided that the employee had acted reasonably in refusing to participate in falsification of the company records and that his dismissal was unfair.

While asking an employee to do something illegal crosses the line of acceptability, it is not always clear what is ‘reasonable’ and this will often come down to a question of fact and degree; taking into account the terms of the contract, nature of the role, the employee’s seniority and any relevant professional rules and codes of conduct. For instance, asking an airline pilot to serve refreshments to passengers or a surgeon to change a bed pan would be unreasonable and any dismissal for refusal in these circumstances is likely to be unfair. But it is not so clear whether, for example, a refusal by a female sales employee to travel alone at night because of safety fears would justify dismissal.

In Walmesey v Udec Refrigeration a fear of IRA activity did not justify a refusal by an area manager to go to Wexford in Ireland, which was part of his area and contractual duties. The tribunal found that there was no evidence to substantiate the employee’s fears, but interestingly stated that the position may have been different if the employee had been required to go to Belfast, where unrest at the time may have presented a serious risk.

An employee faced with the invidious choice of either complying with an unreasonable instruction or refusing and facing the prospect of dismissal may consider resigning and claim constructive dismissal, subject to the two-year service qualifying period. For such a claim the employee would be required to show that the employer’s request was so unreasonable that no ‘reasonable’ employee could be expected to adhere to it, and as such it undermined mutual trust and confidence between employer and employee.

Asking an employee to carry out something, which is not necessarily illegal, but unethical could fall within this category of unreasonable behaviour, such as asking a lawyer to breach client confidentiality or asking an employee to secretly monitor his colleagues. In Payne v Spook Erection the EAT held that asking an employee to operate a system designed to keep tabs on the workforce was 'obviously and intolerably unfair' and the employee could not reasonably be expected to implement it. An employee who refused and resigned in these circumstances would have a good claim of constructive dismissal.

As we have seen from the cases, a manager does not have carte blanche over their employees. If asked to do something illegal, unethical or unreasonable, an employee should check they understand the request, explain their feelings, and if the matter is not resolved raise a formal grievance with a senior manager or HR.

Kevin Charles is a consulting barrister at Crossland Employment Solicitors