Susan Thomas & Katie Ellis: Football Fever!

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The World Cup kicks off in Brazil today, Thursday 12 June. Because Brazil is 4 hours ahead of the UK, the earliest matches will kick off at 5pm, and the latest at 11pm UK time (although one match kicks-off at 2am!). The UK Government has relaxed licensing laws so pubs will be able to stay open beyond normal hours, especially to show England matches (however many there may be!). For football fans who wish to watch the live games in the pub, this is great news. However, the World Cup inevitably poses problems for employers. It is highly likely at least some employees will come in late to work having overindulged during World Cup celebrations or commiserations, and some will not come in at all.  Those that do make it in may be performing somewhere below par, resulting in a decrease in workforce productivity as employees deal with hangovers and are distracted by the results of the games.

So how do employers best respond to and, indeed, anticipate these issues? Is there a case for flexibility, and a relaxing of the rules, in acknowledgement that this is a rare event, or should normal rules apply? And what are “normal rules” in the new world of flexible working which itself kicks off on 30 June 2014?

Football fever 

Hangovers and tiredness from staying up to watch matches could lead to an increase in sickness absence during the World Cup. Employers should as a matter of course monitor sickness absence to observe its frequency and investigate the underlying causes of sickness absence – and it is key never to make assumptions. Employees who call in sick can be asked the reason for their sickness, albeit this conversation should of course be handled sensitively, and can be asked the likely date of their return to work.

Challenging absenteeism and lateness

If an employer is concerned that an employee may be lying about the reason for their sickness absence, it is technically entitled to ask the employee to produce evidence from a medical professional. However this obviously isn’t practical for all intermittent one-off absences and the SSP regulations mean that employers can’t insist on a doctor’s certificate for the first 7 days of administering SSP. Anecdotal evidence suggests that requiring employees to actually speak to someone to report their absence reduces the rate of absenteeism – the vast majority of people find lying in person harder than in writing. Another effective tool is the return to work interview. Whilst again this should be handled sensitively and shouldn’t stray into Big Brother territory, it can be a useful means of understanding if there may be an underlying issue which needs investigation or support (including potentially reasonable adjustments for a disability), and serves as a disincentive for more opportunistic absenteeism.

Clearly if an employer is unhappy with an employee’s lateness or absence, then the usual procedure is to manage the issue through informal and formal disciplinary warnings (with extreme care taken to ensure any potential disability has first been properly understood and appropriate steps taken). But employers are increasingly realising that disciplinary action is not a constructive tool for short-lived cultural events such as the World Cup, and taking a more pragmatic, flexible approach. Dan Rice caught the attention of the media earlier this year after he allowed his staff to come in late on a Monday morning so they could watch the latest episodes of Game of Thrones, as they were complaining of coming across spoilers whilst on the internet at work. In a similar vein, A Level students at a private school in Surrey have been allowed to start lessons in the afternoon, instead of the morning, so they can sleep in later.

Is a more relaxed approach the answer?

Ultimately this depends on what suits the needs of the business. Some employers may be able, and willing, to consider relaxing their working practices during this time to discourage sickness and lateness – in the hope that this may lead to increased productivity.  Some employers will have no scope for such flexibility, and some will take the view that there is no reason to relax normal standards. Whatever approach is taken, what is important is to make sure staff understand what position you as an employer are taking. It’s important that your expectations are clear, particularly if you do intend to take disciplinary action if those expectations are not met. It’s vital to ensure that all staff are treated consistently. Being more sympathetic to “English” employees after an England match, than to employees supporting other national teams, for example, will obviously leave scope for complaints of discrimination.

Flexi-team?

The suggestions of a flexible approach to World Cup related workplace problems comes just ahead of a more fundamental change to flexible working rights, which come into effect from 30 June 2014. In brief, the changes mean that:

  • the right to request flexible working will be apply to all employees with 26 weeks’ service
  • much of the detailed statutory process is being removed and replaced with a broad duty to deal with applications in a reasonable manner within 3 months, unless an extension is mutually agreed.

A request to work flexibly must still be considered objectively by an employer and can still only be refused by an employer if there are business reasons for doing so which fall into the statutory categories.

Employers may struggle to deal with multiple requests which can’t all be accommodated, and the ACAS Guidance makes the following suggestions regarding multiple requests:

  • requests should be considered in the order that they are received
  • if the first request is considered and approved, this may change the business context and this can be taken into account when considering a second request
  • employers are not required by law to make value judgments about the most deserving request
  • employers should consider each case on its merit looking at the business case and the possible impact of refusing a request.  An employer could have discussion with the employees to see if there is any room for adjustment or compromise.

The end of the nine to five?

The impact of this change is hard to predict but it seems almost certain that employers will face more requests for flexible working than previously. Businesses will be expected show serious consideration for each request, and discuss and explore requests fully with employees so that if the initial request cannot be met an alternative might be agreed. Thus far, many businesses have been resistant to significant change to the traditional 9-5 culture, despite numerous predictions that we will all be working flexibly in the near future. However, if employers find themselves forced to give careful consideration to flexible working requests, it is possible that some prejudices and preconceptions about flexible working may be broken down. In any event, it will be interesting to see how employers and the Employment Tribunals respond to requests without the more charged and contentious context of childcare requirements and potential sex discrimination.

Susan Thomas, Senior Associate and Katie Ellis, Trainee Solicitor at Charles Russell LLP

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