UK: Managing Employment Issues During The Olympics

Last Updated: 12 June 2012
Article by Kemp Little’s Employment Pratice Group

While the Olympics is being welcomed by many employers and employees alike, there are genuine concerns among employers as to the level of disruption the Olympics is going to cause to their business, through transport disruption, increased absence from work and the knock-on impact this will have on productivity.

Our Q&A's below deal with the issues we are being asked most commonly about and set out guidance as to the practical steps you can and should be taking now to minimise disruption as far as possible and to ensure the Olympics is a successful and positive event for you and your employees.

Q. We are worried that some of our staff may use transport disruption as an excuse for lateness or absence from work, particularly on big event days. Is there anything we can do about this?

A: Transport disruption in the capital is likely to have the biggest impact on businesses, with over 3 million extra journeys a day expected in London on the busiest days. Transport for London have admitted there are likely to be severe delays and are now recommending commuters walk it to work. Businesses therefore need to have a strategy in place for dealing with the inevitable late and perhaps non-arrival of employees during this period, whether genuine or not.

Your strategy should consider what employees are expected to do if they are unable to make it into the office due to severe transport disruption, or if they will be significantly late. Employers are not (unless the contract provides otherwise) obliged to pay employees for the time they are unable to get into work. However, to maintain good employee relations many employers will consider allowing employees to either make up time, treat the time as holiday or work remotely on those days (see below for more on this point).

If there are concerns about employees using this as a reason for malingering, while potentially this could be grounds for disciplinary action, it may be difficult in practice to prove the employee hadn't genuinely suffered transport problems. Having a strategy in place, such as the one outlined above, and communicating this to employees, should discourage this type of malingering however as this will set the expectation that employees are expected to either make up the time in some way or use their annual leave to account for time away from the office due to travel disruptions.

Q. We have received a number of requests already for flexible and home working but don't generally have a policy of doing so in our office. Do we have to allow this?

A: There is no specific requirement to allow flexible working during the Olympics. However, many employers, including those previously reluctant to allow flexible working, are now considering this as a means of ensuring maximum productivity from their employees. The most common measures involve remote working and varying start and finish times so that employees can avoid travelling at peak times.

Issues you will need to think about if considering allowing flexible working include:

  • Documenting any agreed changes so that it is clear as to what is expected and that the arrangements are only on a temporary basis for the duration of the Olympics;
  • Ensuring employees have appropriate IT equipment and support if working from home;
  • Consideration of how productivity is going to be monitored/assessed during this period; and
  • Ensuring fairness between employees, so that requests for flexible working are dealt with consistently and the scope for dispute/discrimination claims is minimised. This will include consideration of how requests have been dealt with in the past and how this may impact on future requests. For example, if you have previously refused requests made under the flexible working legislation for early/late start times or home working, will the decision to now allow it be consistent with that and is it likely to impact on future requests.

Q. How do we deal with all the holiday requests we are likely to receive? The Olympics is coinciding with the start of the school holidays which is already a difficult time for us to resource.

A: The best starting point will be to check your annual leave policy as this may set out how competing requests are dealt with. If not, many employers are adopting a first come first served policy for annual leave as this is often felt to be the fairest approach. However, for some types of employees/teams, this may not be appropriate and in that case you may then need to consider requests on a case by case basis. Whichever approach you take, the key is to try and be consistent between employees.

If you receive too many requests, you are permitted to refuse annual leave. However, we suggest this is only done for genuine business reasons and again is done consistently to avoid claims for discrimination and potentially breach of trust and confidence if it is felt that leave has been refused arbitrarily. For the sake of employee relations, if at all possible we suggest adopting a flexible approach, in terms of the number of employees allowed off at one time during this period.

Q. Can we discipline employees who take sickness absence on the day of an important event when we suspect they were actually attending the Games?

A: While this is potentially grounds for disciplinary action, it may in practice be difficult to take action as proving an employee was not sick on any particular date can be difficult (unless perhaps they are captured on TV at one of the Games events). This is because employees are not legally required to provide medical certificates for one day's absence and may legitimately be sick without visiting their GP. It can therefore be difficult for either the employee to prove they were sick or the employer to prove otherwise.

Perhaps the best approach is to try and deter employees as far as possible from taking "sickies", by setting out clearly what is expected of them when they are sick. Employees who are required to discuss their absence with their manager/HR are often less willing to take "sickies" so you could, for example, require employees to speak to their manager/HR directly rather than simply leaving a message and/or require employees to have a return to work meeting following their absence.

Q. One of my employees is a volunteer and has asked for time off even though they have used up most of their annual leave for the year. Do we have to allow this and if so, do we have to pay the employee for this leave?

A: Other than for certain public duties, which do not include the Olympics, employees do not have a right to time off work in order to volunteer. Many volunteers will therefore be using up their annual leave to do so. Where employees cannot do this, as in this example, they can ask their employer for an additional period of leave. Employers are under no obligation to grant additional leave but many, subject to business requirements, are allowing employees to take a limited amount of unpaid (and in a few cases, paid) leave to allow them to fulfil their volunteer duties.

If granting additional leave, whether paid or unpaid, employers should be aware of the possibility that other employees may ask for time off in the future for different types of volunteering activities and are likely to expect the same treatment. Employers should therefore be careful about setting a precedent they may not wish to follow in the future.

Q. We are planning on setting up a large screen TV in one of our meeting rooms. Are there any issues we should be aware of?

A: This should, and in all likelihood will, be a great opportunity to increase employee and team morale. However, it may be sensible to consider if you want to put any ground rules in place to ensure the business continues to run smoothly and to prevent any disciplinary matters arising from, for example, excessive internet streaming of events or "banter" that gets out of hand.

Potential issues to consider include:

  • Whether you will require employees to make up time either before/after work or during lunch breaks;
  • Whether, to ensure the business continues to function, you will need to set any limits as to the number of employees that are required to remain at their workstations at any one time, and if so, how you will decide who is allowed to watch the event;
  • What is your policy on internet streaming of events, the use of social media and online betting, and has this been communicated to employees; and
  • Whether to give employees a gentle reminder that what to some may be harmless "banter", to others may be hurtful, offensive and potentially discriminatory, as race discrimination does not only refer to skin colour but also to nationality, ethnic and national origins. As with any international sporting event, supporters are likely to be passionate about their teams and care needs to be taken to ensure the line isn't crossed into discriminatory behaviour. Employers may, unless they can show they took all reasonable steps to prevent the discriminatory behaviour, be vicariously liable for the actions of its employees. It is therefore in your interests to make sure your employees are aware of the issues and that inappropriate behaviour will not be accepted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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