In light of the forthcoming football World Cup, Andrew Haywood, employment partner and head of the sports and entertainment group at Penningtons Manches, provides some tips for employers preparing for potential workplace issues resulting from large sporting events.
With major sporting events that tend to run over a series of days or weeks, employers could expect to face some of the following issues:
There is no legal obligation for an employer to provide facilities to enable staff to watch major sporting events or to be more lenient to employees about annual leave or flexible working during these times. However, studies have found that sport and conversations about sport between staff and customers or clients can have a positive impact on morale and mood, improving motivation and productivity in the working environment. If an employer decides to incorporate the sporting event into the working day, this could create an environment for social inclusion, communication and bonding.
Having reasons to talk about the sporting events at work, and watching sports together, could help enhance communication between employees, breaking down hierarchical boundaries and also improving customer and client relations. Employers may wish to take advantage of this while major sporting events are taking place and use it to maximise team spirit within the office. While the worry is that a major sporting event could cause distractions and decrease productivity, equally it could enhance the workplace through enthusiasm and excitement. If a more flexible approach is taken, major sporting events could actually bring benefits to the workplace.
To facilitate this, employers can consider one or more of the following options:
In addition, if practical to do so, providing television screens in a designated room (for example a kitchen or staff room), means that employees don’t have to leave work to watch the sporting event which could also minimise the risk of employees pulling ‘sickies’, requesting annual leave at short notice or working from home.
Employers will need to carefully consider how they wish to approach major sporting events and whether they intend to restrict or monitor the time employees spend watching or streaming them.This is why it could be beneficial to produce a specific sporting events policy to complement any internet usage or monitoring policy already in place.
If an employer does decide to monitor employees’ internet usage then, in addition to implementing a company-wide policy, it should also check whether the employment contracts contain a provision entitling the employer to monitor usage. The absence of a contractual clause could, potentially, lead to a breach of trust and confidence and a claim for constructive unfair dismissal. Any policy will need to address when the employees are permitted to use the internet and for what purpose (for example, the employer may not wish to restrict any usage during non-working hours or breaks), the fact that monitoring will be carried out and the reason why.
The employer should also consider the impact of the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018 and the Human Rights Act 1998 when implementing a policy. Before any monitoring is undertaken, it is essential to undertake an impact assessment. Some helpful guidance on monitoring employees is set out in the ICO employment practices code (based on the now repealed Data Protection Act 1998).
The essence of sport is ‘inclusion’ and it is important that this is clearly communicated to all employees. Discrimination is prohibited in employment under the Equality Act 2010 and nationality falls within the definition of race so employers will need to be alert to potential discriminatory behaviour towards an employee, particularly on grounds of harassment, when passions are high among employees and the use of ‘banter’ may be more commonplace.
Employers will also need to be careful limiting employees to watching only England matches during working hours as employers could inadvertently expose themselves to legal challenge on the grounds of discrimination where the policy does not apply equally to all matches played during a tournament that involve the employees’ respective national teams. Unfortunately, there is no risk-free way of dealing with this issue if the employer wants to have a policy, as any type of restriction on watching games based on an employee’s nationality, or because England is the ‘home’ nation, could give rise to a direct or indirect discrimination claim. However, in the context of the occasion and what the employer is trying to achieve, which is only for the benefit of its employees, one would hope that common sense will prevail.
To manage any issues which could arise during major sporting events, implementing a company-wide policy or statement is advisable. Having a policy in place will help inform staff of any exceptions to usual working practices, give clarity on what is permissible and define the parameters for disciplinary action should an employee fail to comply. Furthermore, the advantage of creating such a policy is that, once created, it can be re-used for each large sporting event.
Within any major sporting event policy, employers should outline the organisation’s stance on a variety of issues including holiday requests, flexible working, working from home, internet usage, monitoring and general workplace conduct for the duration of the tournament. How an employer deals with holiday requests is often dealt with in the contract of employment and so it is imperative that any policy is also consistent with an employee’s contractual terms.
If employers are agreeing to stream certain events, they could include times and durations acceptable for employees to watch. For example, they could agree to stream live events so long as an employee does not take longer than one hour out (assuming the employee normally has a one hour lunch break) from their working day, agree to stream events but only during lunch/ break hours, or provide complete flexibility but conditional upon the employee ensuring they fulfil their contractual hours around the event (although this option will require more administration in terms of enforcement).
Any policies created need to be communicated to all employees and they should all be provided with a copy in advance of the major sporting event. Where applicable, employers should also post the policies on their intranet. Employers could also consider holding internal meetings to highlight the expectations and policies in place during major sporting events and use these meetings as an opportunity to announce or remind employees of any policies which exist. But this may be overly burdensome for employers to carry out.
Finally, if an employer does create a policy or release a statement ahead of any major sporting event, they should ensure that it is followed, applied and enforced consistently.
Andrew Haywood was interviewed by Alex Heshmaty for LexisNexis.
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