World Cup Fever

During the first match of the 1998 FIFA World Cup, Des Lynam greeted BBC viewers by asking “Shouldn’t you be at work?”; a clear nod to employees throwing a World Cup ‘sickie’ in order to watch the game. Lynam’s introduction was almost prescient; just four years later, an estimated two and a half million British workers would call in sick to watch England’s group stage game against Argentina.

We have previously explored how employers should handle suspicious absences during major sporting events – you can read more on that below. To summarise, this includes ensuring sickness and disciplinary policies are in place and clearly communicating these to employees well in advance, investigating any suspicious or seemingly ingenuine absences, documenting and formalising any internal procedures, and maintaining a consistent approach for all employees.

Since that article was written, we now have huge numbers of employees working from home (WFH) which arguably increases the risk of people watching games during working hours tenfold. In the absence of the handy red flag of employees calling in sick that we would have had pre-Covid, employers now have a new dimension to grapple with when it comes to unauthorised event watching during working hours.

To help mitigate this, during the run up to major sporting events, it is worthwhile making expectations clear to employees. For example, a friendly reminder about the purpose of WFH is a good starting point, whilst equally reminding staff that performance or conduct issues will be subject to disciplinary action. If applicable, your hybrid or home working policy might also be a helpful reference point for making it clear that a right to WFH is often discretionary and can be withdrawn if concerns about performance or conduct arise.

Whether your employees WFH or not, it is essential that you have well-drafted sickness, disciplinary and hybrid/home working policies in place. ACAS has published guidance on employees’ rights should they falsely phone in sick during the World Cup and suggested that such behaviour could amount to gross misconduct; we would agree and would further suggest that this applies to those watching the game while purporting to WFH too. At the very least, suspicions of foul play could warrant an investigation and subsequent disciplinary action being taken, with appropriate measures being taken where it is decided that the allegations are likely to be true. Proving the allegations is likely to be very difficult however and it will be of paramount importance to act consistently with all staff.

If not wanting to be ‘all stick no carrot’, you could consider making some allowances which might even increase the chances of your employees complying with your boundaries. For example:

• Could employees be allowed to watch a certain number of events during the working day, if they make up the time outside of normal working hours?
• Would you allow employees to flex their hours or leave work early for matches? If flexing, consider if this is in line with any flexible working policy that you have in place or whether any temporary changes need to be specified for the relevant time period.
• Could games be shown somewhere in the office (for example, in a cafeteria or social space) or be hosted as a social event?
• If England reached the final, would you consider allowing employees to start late the following day?

If you decide to offer employees some leniency during these events, it is important to ensure there is consistency in the ways in which you treat your staff. Decisions must be fair to all employees and allowing football fans to leave early, having not offered others the same treatment for other large-scale events or festivals, could potentially be seen as discriminatory. ACAS have stated, for example, that, if you give staff time off to watch England games, you should extend the same courtesy to workers supporting other nations. They have further stated that companies risk sex discrimination claims if they are more lenient in their treatment of male workers during such events, assuming that women will not be interested. The key takeaway here is that you must be mindful of all staff when taking these decisions, or risk potential discrimination claims.

Finally, while some of the following may be too late for the forthcoming World Cup, you may also want to consider the following logistical questions for similar, future events:

• Will employees be allowed to take annual leave during the event? How will you handle multiple requests if these would leave you short-staffed?
• Do you want to monitor your employees during this time and, if so, how do you plan on doing that?
• What will your approach be to any absences after a big event?
• How will you look to ensure consistency of treatment between those staff working remotely and those in the office where it might be easier to watch games ‘under the radar’?

If you require assistance with planning your approach to big events, preparing your policies, or handling any disciplinary action that arises during this period, or would like any other employment law advice, please contact our team at [email protected]