World Cup fever: frequently asked questions
Sarah-Marie Williams of Clyde & Co LLP begins a series of articles on employment-related issues arising from the forthcoming football World Cup tournament with some frequently asked questions that look at time off and absenteeism. Employers may experience an increase in employee absence during the World Cup, particularly if they do not make clear their position regarding time off.
How should employers deal with requests for time off to watch key matches during the football World Cup tournament?
There is no legal requirement for employers to give employees time off to watch World Cup matches. Whether or not to grant time off is a matter for employers to consider, taking into account the needs of the business. During key sporting events, such as the football World Cup, some employers operate a "business as usual" approach whereby employees who want to take time off must request annual leave in the usual way. At the other end of the scale, some employers screen key matches at the workplace and allow employees to watch them while they are at work. Where flexible working practices exist, employees may be able to work around the matches that they want to watch and make up lost time. Some employers may consider a period of flexible working to accommodate key events.
Given the current economic climate, it is likely that most employers will require employees to use their holiday entitlement or work flexibly to make up lost time if they wish to take time off work to watch matches.
How can employers avoid allegations of unfair and/or discriminatory treatment when allowing employees to take time off to watch football?
Employers are unlikely to be in a position to grant all requests for time off or annual leave to watch football. A large number of employees may request time off to watch key matches and these requests will compete with other holiday requests. The needs of the business must take precedence and employers will have to ensure that they deal with competing requests fairly. Employers should deal with requests for annual leave in the same way as they deal with requests for leave during other periods of high demand, such as during school holidays or the Christmas period.
Employees who consider that they have been treated unfairly may pursue a grievance. Employees may also claim that they have been subjected to unlawful discrimination (for example because of their sex, race or age) where the employer does not grant a request for time off. To avoid allegations of unfair and/or discriminatory treatment when either granting time off or allowing employees to take annual leave to watch matches, employers need to consider all requests fairly and consistently and not favour a particular group.
Employers should not discriminate when deciding for which
matches to grant time off. If time off is to be granted to watch key
Should employers adopt a sporting events policy and what should it include?
Employers should consider adopting a policy to cover their approach to major sporting events such as the football World Cup. The policy should specify the employer's approach to events, including time off, and the expectations that it has of its employees. By making this clear the employer may experience less unscheduled absence than would otherwise be the case. Adopting a policy in advance of the event is likely to benefit employers and employees because it will enable both to plan ahead and will facilitate open communication about time off and absenteeism. A sporting events policy could, for example, inform employees that they must request annual leave if they wish to take time off and that requests must be made by a specified date. The policy could inform staff that the employer will make every effort to accommodate holiday requests to watch matches but that employees should be aware that it will not be possible to grant all requests. Employers could make clear that requests will be granted either on a "first come, first served" basis or on a rota basis. Where employees are to be allowed to watch football matches during work time and on the premises, the policy should set out how the employer will arrange this and the conduct that it expects from employees (for example that alcohol may not be consumed and that bad language and rowdy behaviour will not be tolerated).
Prior to the start of the tournament, employers should ensure that they have a clear sickness absence policy and a reliable method of recording sickness absence, including dates and length of absence and the reasons given. This should allow employers to identify patterns of sickness absence (for example where it coincides with the timing of televised matches). Employers should also ensure that their disciplinary policies and procedures allow them to deal effectively with conduct issues that might arise from the World Cup (for example unauthorised absence or attendance at work under the influence of alcohol).
What action can employers take in advance of the World Cup to discourage absenteeism?
Given that the World Cup is likely to lead to increased unauthorised absence (including non-genuine sickness absence) employers may wish to put specific rules and procedures in place during the World Cup period. For example, employees who are off sick (other than those who are already known to be on long-term sickness absence) could be required to notify their absence to a specified person, for example a member of the HR department. This would help to make employees aware that the employer is closely monitoring sickness absence during the period. The person to whom employees are required to report could ask more probing and appropriate questions when speaking to employees about their absence and would have readily available information for effective monitoring of the situation and identifying absence patterns on match days.
This approach, coupled with advance warning to employees that unauthorised absences without a good reason and sickness absences that are not genuine will be dealt with under the employer's disciplinary procedure, should help to discourage absenteeism during the World Cup period because employees will be made aware that their employer is scrutinising absence.
What should an employer do if it suspects that an employee's reported sickness absence is not genuine and is due instead to him or her taking time off work to watch a football match?
Employers should be careful not to assume automatically that sickness absence during the World Cup or other major events is not genuine. However, employers may have grounds to be suspicious about some employees, particularly where they have a history of short-term sickness absence. Where the employer has doubts about an employee's absence but there is no clear evidence to incriminate him or her, it should investigate further and question the employee when he or she initially reports the absence and conduct a return-to-work interview. The employer should note absence patterns and ask the employee for an explanation. If the employer has a reasonable belief that the absence is not genuine, based on its investigations (perhaps because the employee has given evasive or inconsistent answers), it may take the matter further. Where there is evidence that the employee was not sick (for example he or she was seen in the pub watching a match), this will clearly be a disciplinary matter. Unauthorised absence and reporting absences as sickness when this is not the genuine reason are serious disciplinary offences that could result in disciplinary action.
To limit liability for disability discrimination and unfair dismissal claims, employers should ensure that they carry out a proper investigation, follow a fair procedure and do not jump to conclusions regarding an employee's absences, particularly where he or she has an underlying health problem.
What should an employer do if an employee is detained in police custody due to alleged football hooliganism, and is unable to attend work?
If an employee is unable to attend work because he or she is detained in police custody due to alleged football hooliganism the employer should attempt to find out as much as possible about the situation, including the likely length of absence and the nature of the alleged offence. Assuming that the employee is released after a short period and returns to work the employer should hold a meeting with him or her to find out more, namely whether or not the employee has been charged, and, if he or she has, with what. The employee should be given the opportunity to state his or her version of events. Although the absence was unauthorised it is unlikely to be reasonable for the employer to take disciplinary action against the employee if he or she was unable to attend work due to the detention, particularly if there is no charge or the charges are minor. However, the employer may elect not to pay the employee for the period of absence.
If the absence is likely to be prolonged because the employee has been charged with a serious offence and is remanded in custody, it is advisable for the employer to keep him or her "on the books" pending the full trial. The employer may elect not to pay the employee during the absence because he or she will be unable to perform the employment contract.
Next week's article will be more frequently asked questions on employment-related issues arising from the World Cup and will be published on 10 May.
Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a solicitor at Clyde & Co LLP.
Further information on Clyde & Co LLP can be accessed at www.clydeco.com.
