An Employers' Guide to the 2010 World Cup - Beware of Discrimination
This article was first published in Opportunities in June 2010
Employers are gearing up for weeks of football-related disruption. London law firm Harbottle & Lewis has produced a guide to help managers cope with employment issues arising from the World Cup, as well as offering hints on how best to manage employees effectively over the coming weeks.
One tip: Beware of discrimination legislation if favouring those who want to watch matches.
Howard Hymanson, partner at Harbottle & Lewis said: “Many employers will be relieved that the World Cup only comes around every four years. It can undoubtedly be a minefield for employers wanting to strike a balance between a happy workforce and a profitable business. ”The most important thing for employers to remember is to deal with all issues fairly and consistently and not to let football fever take over. Not all employees will go football-crazy come 11th June and they should not be forgotten whilst pandering to the football-loving crowd.”
Holiday requests
With at least one England game scheduled to take place during the normal 9-5 working day, many sports-mad employees may want to take some (or even all) of their annual leave entitlement during the tournament. But employers will be wary of allowing too many of their employees to be absent at any one time. So when will an employer be within its rights to refuse an employee’s request for time off?
Under the Working Time Regulations 1998 employees are required to give notice of their intention to take annual leave of at least twice the period of annual leave they are intending to take. This default position may be varied and individual employers should, as a first step, review their own policies governing how and when annual leave may be taken to establish how much notice (if any) an employee is required to give. At first glance the requirement to give notice may appear to go some way towards limiting the number of last minute holiday requests that an employer has to deal with. If, however, the employee is requesting just a single day’s holiday the reality is that a two day notice requirement will only go so far in assisting an employer to manage his holiday rotas.
If the needs of the business mean it is not reasonable for an employee’s request for time off to be granted, then the employer may serve a counter-notice on the employee refusing his request which should be given at least as many calendar days before the proposed leave is due to commence as the number of days which the employer has refused the employee to take. In these circumstances the employer is not required to justify its refusal although best practice dictates that it would be well advised do so. Employers should be careful to adopt a consistent, non-discriminatory approach to requests for time-off in accordance with the normal annual leave policy and resist showing any favouritism in making a decision to grant (or refuse) requests.
Unauthorised absences
The alternative to booking annual leave for those less conscientious employees will be to “pull a sickie” either on the day of a big match itself or to recover the morning after the night before, or worse, not show up to work at all without any explanation. No employer would be surprised to know that the number of unauthorised absences tends to increase during major sporting tournaments but for an economy only just starting to recover from the global recession this is anything but welcome news.
What can an employer do if it suspects an employee’s absence was due to a reason other than ill-health? The key is in maintaining up-to-date absence records so that any suspected unauthorised absence can be investigated promptly. Such an investigation might include holding a return-to-work interview and asking the employee to explain the reasons for his absence. If after proper investigation the employer is satisfied that there is no acceptable reason for the absence (or suspects that it was not due to ill-health as claimed) then it may be appropriate to treat the matter as a conduct issue and deal with it under the disciplinary procedure. If the unauthorised absence is to be dealt with as a disciplinary issue then the ACAS Code of Practice on Disciplinary and Grievances Procedures should be adhered to by the employer. If formal action is necessary the employee should be informed of what improvement in their attendance is required and warned of the likely consequences if they fail to improve. If there is no improvement then the employer should consider what appropriate action to take (including ultimately dismissal).
One of the difficulties for employers dealing with unauthorised absences is when an employee is only off work for a single day or two. How easy will it be for an employer to prove that the employee was not sick as claimed but in fact elsewhere watching the match or otherwise nursing a hangover? The mere fact that a single absence coincides with a key game is unlikely to be proof enough. The employer’s job is made more difficult since it is not entitled to ask for a medical certificate in the first seven days of any sickness absence (but instead has to rely on self-certification by the employee). Employers should be wary of making any accusation without proof as this could amount to a breach of the implied duty of mutual trust and confidence entitling an employee to resign and claim constructive unfair dismissal.
Employers should communicate their absence policy to all employees well in advance of the tournament starting. Keep records of unauthorised absences and note any patterns that emerge (such as repeated absences coinciding with key matches). Avoid jumping to conclusions in assuming that any absence during the World Cup is due to an unfortunate case of “World Cupitis”. Instead deal with any absence promptly, firmly and consistently whilst resisting the temptation to overreact.
Flexible working
The right to request flexible working is, as a general rule, only open to employees with certain carer responsibilities (unless company policy otherwise dictates). Much to the disappointment of football fans, there is certainly no statutory right to request flexible working in order to watch a match that kicks-off during the working day.
Nevertheless employers may want to consider whether their business can accommodate a temporary change in working patterns for the duration of the World Cup. For example, the 23rd June sees a 3pm kick-off between England and Slovenia; might employees be allowed to come in early and clock-off at lunch-time that day in order to watch the match live? A flexible approach in this regard can be key to fostering good employee/employer relations and high staff morale can increase overall productivity. A word of warning however; if a flexible working request has been rejected previously then be careful about being seen to grant a similar request for the World Cup. All flexible working requests should be treated fairly and consistently at all times across the organisation.
If flexible working cannot be easily accommodated then consider whether it is feasible for employees to be allowed to watch the match on television at work. Employers are permitted to broadcast matches to their employees providing they have a valid television licence and do not charge for admission. Since most matches will be televised live on terrestrial television it seems that this could be arranged by many employers with minimal fuss. But bear in mind not everyone will want to watch the match so be careful not to ostracise people with no interest in football. More importantly do not leave them picking up the pieces whilst their colleagues relax watching the game as this will be the quickest way of unintentionally alienating a significant proportion of the workforce. Ensure that those who do take time out of the working day make up this time elsewhere and further ensure that the requirement to do so is well publicised so as to minimise resentment amongst non-football fans and ensure equality of treatment of all employees.
Discrimination
An employer eager to accommodate its staff wishes when it comes to the World Cup might well find itself in the unenviable position of defending claims of discrimination if it unwittingly gives undue preferential treatment to England supporters or if it otherwise makes assumptions based on other protected grounds as to which of its employees may be interested in football.
For example, allowing employees time off to watch England matches but not other games, or only screening England matches could potentially give rise to claims of race discrimination on the grounds of nationality. Equally, granting a one-off flexible working request to a man so that he can watch an all-important football match when only last month a similar one-off request by a female colleague for child-care reasons was refused, could leave an employer open to a claim of sex discrimination if the female employee is treated less favourably.
And it doesn’t end there. One employee’s seemingly good-natured patriotic banter in support of his team can be another employee’s unwanted harassment or bullying. Employers must be alert to all these issues; an employer who fails to keep control of its employees could find itself vicariously liable for their actions. It is essential therefore that the parameters of what constitutes acceptable behaviour are communicated to all employees well in advance of the tournament kick-off.
Internet use
Gone are the days when football matches were only available to watch on television. Many World Cup games will be streamed live online and the temptation for employees stuck at their desks will be to log-on and watch the match. There is also likely to be an increased use of sports-related websites by employees keen to keep up-to-date with all the latest action. Not only can this cause a drop in workforce productivity but it can also impact on IT systems and slow down internet connections.
Employers would be well advised to review their internet-use policies and ensure that all staff are aware of what they can and cannot do online, as well as sanctions for breach of the policy (including disciplinary action and ultimately dismissal). This should be done well in advance of the tournament kick-off. Employers who do not currently have an internet-use policy in place might want to consider whether it would be prudent to have one. Harbottle & Lewis’ employment team can assist with reviewing existing policies or drafting new ones.
Alcohol misuse
Employees turning up to work either drunk or hungover is a headache most employers could do without. Depending on the type of work undertaken it could also prove dangerous from a health and safety perspective if a somewhat worse-for-wear employee turns up to work and, for example, operates machinery whilst under the influence (with the employer ultimately being vicariously liable for the employee’s actions at work). Any “no-alcohol” policy in place should be communicated to all employees before the tournament commences. Staff should be reminded of the importance of the policy and the reasons for having it as well as the risk of disciplinary action or dismissal if employees choose to disobey it.
Alcohol misuse outside the workplace is an altogether different problem but in some cases disciplinary action may be the appropriate course of action particularly if the employee’s conduct out of work affects their ability to perform in work (or otherwise brings their employer into disrepute). If dismissal is considered the only option then a fair procedure should be followed or the employer risks the additional headache of an unwanted unfair dismissal claim on its hands.
Dismissal
In the most serious circumstances an employer may believe that dismissal of an employee is justified. Frequent and repeated unauthorised absences from work or significant breaches of company policy may well constitute misconduct which is a potentially fair reason for dismissing an employee. In order to justify a misconduct dismissal it is vital that the employer is able to establish that at the time of the dismissal the employer (1) believed the employee was guilty of misconduct; (2) had reasonable grounds for such belief; and (3) carried out a reasonable investigation before forming the belief.
Any dismissal must also be within the range of reasonable responses open to the employer. In other words, the reasonableness of the employer’s conduct will be important taking into account the facts known by the employer at the time the decision to dismiss was made. Whilst an employment tribunal is not permitted to substitute its own view for that of the employer, it is important that the employer is able to justify any action which it decides to take.
Before dismissing an employee, the employer should adopt a fair procedure and carefully consider whether the employee’s unauthorised absence or breach of company policy (as appropriate) is sufficiently serious so as to warrant dismissal. Moving to dismiss an employee without giving due consideration to this issue is sure to land an employer in hot water with the employment tribunal.
Conclusion
Many employers will be relieved that the World Cup only comes around every four years. It can undoubtedly be a minefield for employers wanting to strike a balance between a happy workforce and a profitable business. The most important thing for employers to remember is to deal with all issues fairly and consistently and not to let football fever take over. Not all employees will go football-crazy come 11th June and they should not be forgotten whilst pandering to the football-loving crowd. The vast majority of employees are not out to take advantage of their employers but will however appreciate being treated fairly and with a certain degree of flexibility. After a year in which the threat of redundancies and pay cuts has never been very far away the thought of England lining up (and who knows, maybe even winning) in Johannesburg on 11th July is sure to boost staff morale for many months to come.
Author:
Howard Hymanson