Summer issues: case study

Louisa Tamplin of Lewis Silkin LLP continues a series of articles on summer issues affecting employers with a case study that looks at how employers should deal with an employee's unexpected absence that coincides with a major sporting event.

Andy has been employed by Madforsport Co for many years. He is known to be a keen sports fan and is particularly interested in tennis. On the first day of the Wimbledon tennis tournament Andy phones his manager, Mary, saying that he has an upset stomach. In Andy's absence, rumours are circulating among his colleagues that he has gone to watch the tennis. Several employees have hinted as much to Mary. Mark and Raf, who work with Andy, have both suggested that they think that Andy is absent because he has tickets for Wimbledon. Mary joined Madforsport Co recently and does not know Andy very well. She is unsure whether or not to believe the rumours and does not know how to deal with the situation.

What should Mary do next?

The timing of Andy's absence with the start of Wimbledon may be a complete coincidence and Mary must be careful not to jump to conclusions on the basis of a few rumours. Andy's colleagues may be troublemaking. However, it would be sensible for Mary to look into the matter. Mary should first check Andy's attendance record to see if absenteeism is a persistent problem.

Mary checks Andy's attendance record with the HR department, and is told that Andy is a reliable and conscientious employee with a good attendance record, and that he is not prone to sickness absence. Is there anything else that Mary should do?

Despite Andy's good attendance record, Mary may decide to investigate the current absence further as there have been rumours circulating about it. She could ask Mark and Raf why they believe that Andy has gone to Wimbledon, and try to establish whether or not Andy said something to them to suggest that he intended to take time off work to see the tournament. She should also try to establish whether or not Mark and Raf are troublemaking.

If Mark, Raf or any other employee, allege that Andy said that he planned to take time off to watch the tennis, the matter should be treated as a disciplinary issue to be addressed with Andy on his return to work. The employee making the allegation should be asked to provide a statement giving his or her version of events.

However, if Andy had merely commented along the lines that he was "looking forward to the tennis", this should not be treated as evidence that he is malingering. If there is no concrete evidence or reason to suspect Andy's sickness absence is not genuine, there is nothing further that Mary should do at this stage.

If Andy telephones Mary the next day to let her know that he is still ill, she should ask him what is wrong, and when he expects to be back at work (if she has not already done so). Mary could also ask Andy whether or not he has seen, or plans to see, a doctor, although he is unlikely to do so if the absence is short.

Andy should be required to comply with Madforsport's sickness absence reporting procedure. If the absence is for seven calendar days or less, he should be required to complete a self-certification form on his return to work. If the absence is for more than seven days he should be required to provide a doctor's certificate to cover the entire length of his absence.

Neither Mark nor Raf offer evidence to suggest that Andy's absence is not genuine. Andy returns to work after three days and completes a self-certification form, stating that he had a stomach upset. What should Mary do next?

In the absence of any concrete evidence or reason to suspect that Andy's sickness absence is not genuine, and in the light of his good attendance record, Mary does not need to take any further steps in relation to Andy's absence.

Had there been evidence to suggest that the absence was not due to genuine ill-health, or if Andy lets slip in future that he took time off work to watch the tennis, the matter would become a disciplinary issue.

If Andy did have a history of short-term absenteeism, Mary would need to investigate the matter further. She should hold an informal meeting with Andy on his return to work and explain that his absenteeism is cause for concern. In these circumstances she should discuss the reasons for his previous absences with him and try to establish whether or not there is an underlying reason for them. Andy may have a medical condition, he may be suffering from stress or he may be being bullied at work. The fact that rumours circulated about his most recent absence, and some employees made allegations about the reasons for it, could indicate that he is a victim of bullying. If it transpires that this is the case, Madforsport should deal with this accordingly, under its harassment and bullying procedure, or grievance procedure. This may result in some of Andy's colleagues, such as Mark and Raf, being disciplined, particularly where allegations about his absence have been made maliciously.

If, after meeting Andy, Mary believed that there was no genuine reason for his absences, she would have to check whether or not there was a pattern to them, and, in view of the rumours that circulated about his most recent absence, whether or not they coincided with previous major sporting events. Persistent short-term absenteeism that is not attributable to an underlying medical condition or other good reason should normally be addressed through the disciplinary procedure. (See Short-term sickness absence: overview for more details on dealing with short-term absence problems.)

What can Madforsport do to prevent absenteeism due to its employees watching sport?

Although there was no evidence to suggest that Andy's absence was due to him taking time off to watch Wimbledon, Madforsport could take steps to prevent absenteeism due to its employees taking time off to watch sport. Some employers do experience an increase in short-term absence levels during major sporting events and may be able to reduce the incidence of absenteeism by allowing employees to watch major events on television at the workplace. The amount of time that employees are not working is limited to the length of the relevant game or match (rather than for the whole day) and employers could require employees to make up the lost time. Where it is not possible to watch events at work employers could give employees the option of working flexible hours so that they can watch sporting events that are particularly important to them.

Whether or not allowing employees to watch sport at work or work flexibly around events are feasible options depends on the timing of events and the nature of the employee's duties. Flexible working may be permitted in relation to certain events, or as part of a more general flexible working arrangement introduced over the summer months.

Employers that allow employees to watch sporting events at work, or that adopt flexible working patterns to accommodate employees who want to watch certain events, need to be careful when deciding which events to favour. Limiting access to men's matches could result in claims of sex discrimination. To show only English or British teams or players could lead to complaints of race discrimination from employees of other nationalities who are keen to follow the fortunes of their country's sports stars. Employers should be able to justify decisions about which tournaments and matches to show, on an objective basis.

Next week's topic of the week article will be a checklist for employers for ensuring continued productivity during hot weather, and will be published on 22 June.

Louisa Tamplin (louisa.tamplin@lewissilkin.com) is an associate at Lewis Silkin LLP.

Further information on Lewis Silkin LLP can be accessed at www.lewissilkin.com.