UK: Summer Sport Skivers

During Euro 2012 and London Olympics it is highly likely that at least some employees will throw a "sickie" to watch the TV coverage and a larger number will spend significant amounts of time checking sports news at work. In the first of three articles covering the 2012 summer of sport employment issues, lawyers in our Employment Team answer some questions which you may be faced with.

The Summer of Sport is likely to raise issues for employers, in particular with regards to absenteeism and productivity. Will Walsh answers some of the most frequent questions. 

Do you have to allow employees to take certain days off as holiday?

No, but you should consider holiday requests fairly. You should follow your normal rules on taking holiday, unless these can be fairly adapted or relaxed to the circumstances, for example first-come, first-served. Explain to staff in advance that leave requests will not be refused unreasonably, but it may not be possible to agree to all of those who ask for time-off to ensure minimum staffing levels, for operational as well as health and safety reasons.

Be mindful of claims of favouritism, discrimination or general unfairness when deciding which employees can take the time off. For example, it might be the case that more men ask for time off for football, but requests by women should not be treated any differently.

What should you do if you suspect a worker has taken a 'sickie'?

If a worker calls in sick on a day which coincides with a match or key Olympic event, or the day after a big game, you may have suspicions that the reasons for the absence are not genuine.

Ensure that you have clear rules and procedures in place for dealing with unauthorised absences, for example in your disciplinary rules or absence policy. If you don't have rules in place already, issue a policy in advance of summer of sport confirming that unauthorised absences will be dealt with in accordance with your formal disciplinary procedure. This doesn't have to be a formal policy – a memo or email may do.

Scrutinise unauthorised absences closely throughout Euro 2012 and Olympics and keep a record of these. The greatest difficulty in pursuing disciplinary action is often obtaining evidence to support your suspicions of what the person was doing whilst off work. Look out for those celebratory photos on the employee's Facebook page! Alternatively, you may hear rumours that the real reason for the absence has been divulged to work colleagues, in which case you could interview those people as part of the investigation.

Where workers are absent during this period, hold return to work interviews with them on their return to work to try to establish if the absence was genuine.

In reaching any decision, much will come down to your own judgment. Actual evidence will assist that judgment significantly, otherwise you will have to rely on your reasonable suspicions, taking into account the cogency of the explanation given by the employee, their general demeanour and other factors such as whether the period of absence coincides with particular games and is of a short term nature. You are not required to prove the case against the employee beyond all doubt, your obligation is to reach a reasonable conclusion based on the evidence available.

Do you have to pay staff who are absent without prior authorisation?

Generally no, but you should have a return to work interview with the employee first to check what the reason for their absence was. If you are not going to pay employees for unauthorised absences, this should be clearly stated in your policy on the matter.

Those who only pay sick pay over and above Statutory Sick Pay on a discretionary basis should be aware that Statutory Sick Pay is generally not payable for the first three days of an absence, which may help resolve this particular issue if any employee has called in sick and there is genuine doubt over whether the absence was genuine or unauthorised. However discretion must be exercised fairly and evenly.

What if a worker doesn't come back from lunch or leaves early without consent?

This is an unauthorised absence, in the same way as taking a whole day 'sickie' discussed above. You should meet with the individual on their return to work, like a return to work interview, and try to establish the reason for absence. If the reason is unsatisfactory, the matter should be dealt with under your disciplinary policy.

Can workers rely on the fact that other departments have all been allowed time off?

Not necessarily, particularly if you can explain genuine reasons why. For example, a team in the marketing department may all be allowed the time off, whereas members of staff in a customer services team are not, because customer services need to be available all the time to answer telephone and email queries, whereas marketing staff don't.

Similarly, individual employees may be treated differently, for example when considering their holiday request, if they have specific managerial responsibilities or job duties that require them to be in the office.

If there are reasons why different employees or teams are treated in a particular way, try to explain why this is the case to staff so that they understand this.

Should workers be allowed to use the flexible working policy to watch sport?

The normal flexible working policy does not apply. However, you might consider requests by workers to swap shifts where possible. Tell staff in advance that they should not do this without prior approval.

You could also consider bringing in temporary staff to cover shifts, although this may be an expensive option.

Do you have to make allowances for workers who do not watch football or the Olympics?

No. However, you should keep an eye out for disgruntled employees who feel that they are having to work harder to cover for colleagues during the summer of sport. Some employers might consider implementing football-free areas of work, where those who do not wish to take part can go to escape.

What can you do to avoid workers taking unauthorised leave?

• Send an email or memo to staff with your policy on holiday and absences during Euro 2012 and the Olympics.
• Where you do not intend to allow time off for the matches, encourage workers to book holiday to watch matches as early as possible, but also make it clear that granting holiday requests will be subject to the needs of the business.
• Remind workers that sickness during Euro 2012 and the Olympics will be scrutinised carefully and everyone will be asked to attend back to work interviews.
• Think about designating one manager as the point of contact for all staff reporting sick during the Euro 2012 and the Olympics, to monitor the situation.
• Consider your policy on allowing staff to swap shifts.
• Can you take on temporary workers to cover absences?
• Think about allowing workers to watch matches and events on TV in the office or canteen or at their desk. If you allow this, will you require them to make up the time before or after work or at lunch?
• Emphasise that benefits during this time are a privilege rather than a right and should not be abused.