2012 Olympics volunteers: case study
Ailsa Murdoch and Scott Anderson of Lewis Silkin continue a series of articles on employers' obligations in relation to employees who volunteer for the London 2012 Olympics with a case study. The case study looks at a situation in which two employees request leave to enable them to be London 2012 Olympics volunteers.
Oliver Organised is employed by Best Bank. In August 2010, Oliver notified his line manager that he would like to be a volunteer at the Olympic Games. He asked if he would be allowed time off work to attend a selection event and, if selected to be a volunteer, the training sessions. He also explained that, if selected, he would be required to volunteer for at least 10 days during the Olympics, so he would need to be sure of having leave granted during that period. Although he is happy to use annual leave if necessary, it is a big time commitment and will be hard work, so he hopes that Best Bank will offer him some special leave as well. Oliver asked his manager for a response by early October 2010, as applications for volunteers were due to close on 27 October 2010.
Best Bank has no volunteer policy and its existing holiday and absence policies do not deal with volunteering. How much time off will Oliver need, and is the company obliged to grant his request for time off?
Best Bank is under no legal obligation to give Oliver time off to attend the selection event. It could grant him special leave, which could be paid or unpaid, require him to take annual leave or arrange for him to work flexibly so that he can attend the selection event and make up the lost time later. Nor is it obliged to give him special leave for the training and volunteer days. It will need to decide on the approach that it wants to take to Oliver's request.
Oliver's manager advised him to submit his application to be a volunteer and wait and see if he is invited to a selection event. If he is, Best Bank will consider his request in more detail.
In June 2011, Oliver is invited to attend a selection event. He arranges to attend a session in the early evening to cause minimum disruption to his work, but explains to his manager that he will need to leave work at 3pm. Given Oliver's efforts to be accommodating, his manager agrees that he can leave early and then make up the time during the rest of the week. Oliver's selection event takes place in July and goes well. In December 2011, Oliver is offered a Games Maker role. On receiving this offer, Oliver asks his manager for leave to attend three training sessions in the first half of 2012 and 10 days volunteering during the Games (although he will not know his roster until April 2012).
Should Best Bank agree to Oliver's request?
Although it is under no legal obligation to give Oliver leave to be an Olympics volunteer, Best Bank should consider the potential benefits of being supportive of his request. For example, he may gain new skills and experience and taking part in such an historic event is likely to have a positive impact on his morale. Best Bank could also benefit from enhanced public relations if it is seen as supporting employees who wish to volunteer.
Oliver's manager considers what he should do and asks the HR department for advice. The HR manager knows that Best Bank would like to show itself to be a supportive employer and recognises this could be good for public relations. The company cannot afford to grant Oliver special leave for all of the time that he has requested to take off, but it does want to offer him something. Therefore, Best Bank and Oliver agree that he will try to arrange his training sessions to be at weekends or in the evening. If he does so, Best Bank will allow him special paid time off for any travel time during working hours and he will not be required to make up the time. For his volunteer days, the company agrees that Oliver will take five days as annual leave and the other five as unpaid special leave. Oliver is delighted. He has the time off that he needs and will still have annual leave to use later in the year. He is pleased that Best Bank is being supportive and resolves to make the arrangements work as well as he can.
In May 2012, another Best Bank employee, Daisy Disorganised, notifies her manager that she has accepted one of the last offers (made in April 2012) to be a Games Maker. Daisy had not told anyone at Best Bank about her application to be a Games Maker. Although she took annual leave earlier in the year, she did not mention that this was to attend a selection event. Therefore her manager was unaware that she might need leave during the Games.
Daisy asks her manager if she can take three days' leave to attend her training sessions the following week. Unfortunately, all the weekend and evening sessions had been booked up by the time she got round to booking her sessions, so she will need to attend them during the working day. She also asks for 10 days' leave in late July and early August 2012 to volunteer during the Games.
Best Bank considers Daisy's request carefully. Although it would be prepared to grant her annual leave for the training sessions (even at short notice), it declines to grant her annual leave or special leave for volunteering because it is short-staffed over the period of the Games. Best Bank explains that it has already granted a number of requests for leave, including Oliver's request for leave to volunteer. Several employees have already booked substantial time off to watch events at the Games and others are taking their normal summer holidays during the school break.
On receiving this news, Daisy is upset. She feels aggrieved because she knows that Oliver has been granted time off to volunteer at the Games and that Best Bank has even granted him special leave. She is also annoyed that other employees' requests for leave for normal summer holidays that have already been submitted are being prioritised over her request for leave to be a volunteer. Daisy complains about this to her manager. Her manager is concerned that she might bring a claim against the company.
What claims might Daisy have against Best Bank?
Daisy is unlikely to have a successful claim against Best Bank. Unlike Oliver, Daisy did not openly communicate with Best Bank about her intentions at an early stage. Instead she has requested her leave at the last minute. Best Bank has, in good faith, clearly explained to Daisy its refusal to grant her leave, and provided legitimate business reasons for doing so. However, the fact that Best Bank has no formal policy on this issue may leave it more exposed to complaints from disgruntled employees, which will take time to manage.
Daisy might claim that she has been discriminated against because of her gender. She could claim that she and Oliver put in similar requests and that, inexplicably, his was granted and hers was refused. Provided that Best Bank can explain the basis for its different decisions (and demonstrate that it was not because of gender), a claim of this nature is very unlikely to succeed. In this case, Oliver made an early and carefully considered request for time off and he took steps to minimise the impact of this absence on Best Bank. Daisy made a late request for time off and did not organise herself well to reduce the amount of time off that she would require. On this basis, Best Bank is probably entitled to treat them differently. She might also resign and claim constructive dismissal, arguing that Best Bank's decision was so unreasonable that it amounted to a breach of trust and confidence. Although this would be an extreme response, the critical issue when defending this type of claim is for Best Bank to demonstrate that it did not act unreasonably and that its actions had neither the intention nor the effect of breaching trust and confidence. Provided that Best Bank can demonstrate the basis for its decision and show that this was on reasonable business grounds, a constructive dismissal claim is very unlikely to succeed.
Daisy might also try to argue that Best Bank has breached its obligations under the Working Time Regulations 1998 (SI 1998/1833) regarding her request for annual leave. However, provided that Best Bank informs Daisy that her request has been refused at least 10 days before she wants her 10 days' annual leave to begin, it will have complied with its obligations under the Regulations.
How might this situation with Daisy have been avoided?
Best Bank might have avoided this situation if it had made its position regarding volunteers for the Olympics clear from the outset. This case study is relatively clear-cut, but there are likely to be more finely balanced decisions for employers in the coming months. Therefore, employers should consider implementing a policy to address this issue. This could be a permanent policy dealing with time off for volunteering and for wider reasons. Or it could be a policy to be adopted on a temporary basis and dealing specifically with time off to volunteer at the 2012 Olympics. Either way, it should include a fair and transparent process showing how the employer will deal with requests for leave. (See Policy on staff volunteering for the Olympic Games in the XpertHR policies and documents section for a model policy.) Issues that employers should consider include the following:
- Will the employer require employees to take annual leave to volunteer for the 2012 Olympics or will it grant special leave, and will that leave be paid or unpaid?
- How will the employer deal with competing requests for leave for the Games? For example, will it adopt a "first come, first served" approach or apply a balloting process after all requests have been submitted? Given that Games Makers may be advised of their training and volunteer dates at different times, a ballot process may be a fairer method.
- By when must leave requests for the Games (along with evidence of Games Maker status) be submitted? Again, this requirement should account for the fact that employees may find out their training and volunteer dates at different times.
- How will the employer treat employees who apply for annual leave around the period of the 2012 Olympics but for purposes other than volunteering at the Games (for example for normal summer holidays or to watch Games events)?
- Is flexible working an option for employees who want to volunteer for the Games, and how will this be allocated and organised?
Whichever approach they take, it is a good idea for employers to plan ahead and engage with employees to implement a policy in good time.
Next week's topic of the week article will be a checklist for employers in relation to London 2012 Olympics volunteers and will be published on 20 June.
Ailsa Murdoch (Ailsa.Murdoch@lewissilkin.com) is a senior associate and Scott Anderson (Scott.Anderson@lewissilkin.com) is a legal assistant in the Employment, Reward and Immigration Department at Lewis Silkin.
Further information on Lewis Silkin LLP can be accessed at www.lewissilkin.com.
