Over-refreshed and misbehaving: the World Cup in the workplace

By: Michael Scutt

Date: 7 June 2010

Football and grass

The quadrennial jamboree that is the World Cup is just a week away. South Africa hosts Mexico on June 11th in the opening match of the tournament, which comprises 32 teams and culminates 63 matches and one month later in Johannesburg’s final.

England qualified, of course, and we can doubtless look forward to more raised hopes, dashed expectations, broken metatarsals, penalty shootouts and sendings off (history does repeat itself, doesn’t it?). Not to mention hangovers, sickies and punch-ups – and that’s only among the players.

While the tournament may be keenly anticipated by many (and loathed by many others), there are employment law issues arising that employers ought to take into account before settling down in front of the box.

The real world of business must go on and the World Cup, like any popular sporting event, poses problems to employers when workers would like to watch their team. England’s schedule for the first round matches is fairly kind to employers; the first two matches kick off at 19.30 BST and it is only their third match that eats into the afternoon with a 15.00 kick-off.

The Chartered Institute of Personnel and Development (CIPD) recently published its World Cup and Absence Management Guide which sets out the main issues that employers might face and is well worth a read. XPert HR also published a model policy for “sporting and other special events” in Employers’ Law dealing with the same issues.

The CIPD guide suggests that shift swaps, flexible hours and unpaid leave could be utilised or, if employers want to make more of an event (and promote team building) they could screen matches in the workplace. This later suggestion would no doubt suit football fans but for those who can’t stand the game it could cause disruption and resentment if they are excluded. Do bear in mind that if a television is being used on work premises it will need a TV licence and, if live football is being screened through a feed on to employee’s PCs a TV licence is also required for that.

The CIPD’s other suggestion of having a radio or TV on in the background strikes me as unworkable – those who want to watch will feel constrained from doing so and for those who aren’t interested it will be an unwelcome background hubbub. Whatever solution is adopted, it probably pays employers to embrace the World Cup and be flexible, if only as a more constructive approach to dealing with the inevitable problem of absenteeism if no steps are taken.

However, the problems facing employers are not confined solely to how to screen the matches. Staff absenting themselves is one obvious problem, the other might be employees becoming “over-refreshed” (which could be particularly concerning if it happens in the workplace) and committing acts of misconduct and, even, criminal offences. An employer can be vicariously liable for the actions of an employee and claims could arise from one employee offended by the words or actions of another.

For instance, the recent case of May & Baker Ltd (t/a Sanofi-Aventis Pharma) v Okerago the facts of which arose from the last World Cup , demonstrated this. Ms Okerago was employed as a pharmacy inspector. She alleged that a fellow worker made a racially offensive remark to her when asked whether she would be supporting England or her own country. When she replied “her own country” she was, unhappily, told to return to that country. She sued for race discrimination when dismissed by the company, allegedly over an issue of her conduct. The Employment Tribunal held that she had been directly discriminated against. However, on appeal the decision was overturned because (for these purposes) of a technicality. The risk of inappropriate and/or offensive comments or actions occurring will be only be increased, especially if workplace screenings involve alcohol. Employers should remind staff that such conduct or comments will not be tolerated.

What happens if the employee commits a criminal offence (involving football hooliganism, for instance) whilst supporting his team? If the offence takes place outside the workplace the employer needs to consider its position very carefully before instigating disciplinary action. The case of Post Office v Liddiard [2001] where a postman was convicted and sent to prison for being involved in football hooliganism (in France) was exceptional. The Post Office dismissed him for gross misconduct, but that was in response to the damage done to its reputation because of the public outrage that occurred in response, rather than his actual activities.

However, in 2002 another postman was caught on television kicking an opposing supporter and was dismissed by Consignia (as it then was). Although the case was not formally reported he apparently won substantial compensation at an Employment Tribunal. If an employee is alleged to have committed an act of misconduct the employer must be sure to investigate the allegation thoroughly before considering disciplinary proceedings. The employer must follow a fair procedure which complies with the ACAS Code of Practice on discipline and dismissals, or claims for unfair dismissal may arise (and be successful). An employer’s decision to dismiss an employee will be judged by an Employment Tribunal according to the “range of reasonable responses” test. 

The prudent employer will remind its staff of the company’s policies on absence, alcohol consumption at work and misconduct. If an employer sets out what is and is not acceptable behaviour and treats all staff fairly in accordance with those policies, if a problem does arise it should be easier to deal with. It should probably also tell its staff to keep away from postmen at football matches as well. 

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