Illegal Instructions

So your boss wants you to do something you think is illegal…

Given the recent sacking of the US Deputy Attorney General Sally Yates, we thought it appropriate to look at how English law deals with similar situations.

There are of course specific issues involved with positions such as the one Ms. Yates held which do not apply to most jobs. Leaving aside the political aspects, what is the situation under English law where an employee considers that they are being required by their employer to do something that is illegal?

The basic obligation of an employee is to follow reasonable and lawful instructions. Therefore, if the instruction is not lawful, the employee is not obliged to carry it out.

On the other hand failure to comply with a reasonable and lawful instruction is a fundamental breach of contract justifying immediate dismissal by reason of gross misconduct.

In practice therefore, an employee asked to undertake a task which she feels is unlawful has a difficult decision to make.

She must first weigh up whether the instruction genuinely is unlawful. Some legal advice might be useful here–if the situation allows!

Unfortunately, employees often do not have the luxury of sufficient time to be able to take advice. If the possibility is there, you should certainly get legal advice though.

Assuming she is satisfied that the instruction is unlawful, what should our hypothetical employee do next? As always, that will depend on the circumstances.

Is it possible to discuss the instruction with her boss? If so, they may be persuaded not to insist on the instruction. In a large organisation, there may be a higher level of management who can be contacted—this has its own risks.

It may also be possible or in some cases a requirement to notify outside bodies (regulators, for example). This should always be done very carefully and ideally legal advice sought before doing anything. The law on making protected disclosures (commonly known as ‘whistleblowing’) is not straightforward and making a disclosure which is not protected by law can itself be a reason for dismissal.

Any such notification is of course unlikely to resolve the immediate question of whether to follow the instruction or not.

Assuming it is not possible to change the boss’s mind, the employee really only has a few options.

She can either:

  1. decide to ignore her concerns and follow the instruction, potentially implicating her in whatever legal repercussions there might be; or
  2. refuse to follow the instruction and wait to see what action her employer takes in response; or
  3. refuse to follow the instruction and resign in protest, claiming constructive dismissal.

The honest truth is that none of these options are good.

Option a has obvious risks and we would strongly advise against knowingly engaging in illegal activity.

Option b probably ends in dismissal.

Option c definitely puts you out of a job.

Options b and c both potentially give rise to a claim in the Employment Tribunal for unfair dismissal. In both cases, the employee would have to show that the instruction was unlawful and/or unreasonable. If she can’t persuade a tribunal of that, she will lose her claim.

Generally our advice would be not to resign and put yourself out of a job unless you have no other option. Whether other courses are open to you will depend on the exact circumstances and you should definitely take legal advice before deciding if possible.

If you are facing this situation, please contact us.

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