As a result of the ongoing conflict between the Ukrainian army and pro-Russian rebels, six football players contracted to Ukrainian club, FC Shakhtar Donetsk, have refused to return to the club’s home town of Donetsk following a friendly against Lyon in France. Although the club is currently unable to play matches in its home stadium due to the unrest, it has told players that they should not have any concerns over their safety and, should they fail to return to Donetsk, may face sanctions for being absent without authorisation.
It is well established that an employee is expected to comply with the reasonable instructions of their employer during the course of their employment and employees should be available and ready to work during their contractual hours. However, when an employer makes a request of an employee which could, potentially, affect their health and safety, is the employee entitled to refuse that request?
As one would expect, whether a refusal to follow an instruction is reasonable or not will very much depend on the instruction itself, the nature of the work and the environment in which the work is carried out. However, employers faced with such a predicament do need to adopt a cautious approach because an employee who has raised health and safety concerns about their employment could be deemed to have made a protected disclosure. This means that any subsequent disciplinary action taken by the employer - FC Shakhtar is threatening to stop paying the players’ wages unless they return to Donetsk - could amount to a detriment.
Perhaps more significantly for FC Shakhtar, given the potential loss of a future transfer fee, is the prospect of a player/employee treating the employer’s request and/or any subsequent disciplinary sanction imposed on that employee as a breach of the implied contractual term of mutual trust and confidence thereby enabling the employee to treat the contract as coming to an end with immediate effect.
While an employee would be entitled to bring a claim for constructive unfair dismissal and breach of contract - which could be for a significant amount if an employee is on a long fixed term contract - it is often the release from any post-termination restrictions that poses the biggest problem for employers.
Although most employers are unlikely to require their staff to enter an area of military conflict, an employee’s duty to follow a reasonable instruction could also extend to situations which pose a real risk to the employee’s health and safety. For example, business trips to countries of political unrest or working in environments exposed to severe weather conditions.
The use of risk assessments can often assist employers in the management of potentially hazardous situations and they will certainly assist in any subsequent disciplinary action that is taken. In any event, employers should consider the context in which the instruction given to the employee, whether reasonable or not, is made before reaching for the disciplinary red card.