A vueltas con el deber de obediencia, el ius resistentiae y el principio de solve et repete, ¿cómo conjugarlos en la relación laboral?

Abstract

This paper examines the duty of obedience in conjunction with the right of resistance (ius resistentiae) and the principle of solve et repete. It begins with the premise of the employer's managerial authority, recognized in Articles 20 and 5(c) of the Workers' Statute and linked to the freedom of enterprise under Article 38 of the Spanish Constitution, as the foundation of the duty of obedience, an expression of subordination and contractual good faith. However, it is important to consider the principle of solve et repete, which, as a general rule, mandates prior compliance with employer orders, even when deemed irregular, reserving the right to challenge them at a later stage. In contrast, the right of resistance operates as an exception when the order is manifestly illegal, abusive, outside the scope of employment contracts, infringes fundamental rights, or poses a serious and imminent risk to safety and health. In conclusion, at present there continues to be considerable legal uncertainty and a clearer legal delimitation of the "regular exercise" of managerial power is proposed, reinforcing the preventive protection of the worker against foreseeably unlawful orders.