With the Football World Cup set to kick-off this afternoon, employers should be aware that such a big sporting occasion can either unite or divide a workplace. Talk among some employees is likely to be dominated by what is going on in South Africa and employers should be aware that they may face discrimination, harassment and bullying claims if they allow football “banter” to take a nationalistic or racial turn. Further, employers are concerned that the World Cup may lead to a reduction in productivity and an increase in absenteeism.

Bullying and Harassment

As the World Cup comes around once every four years, there is, of course, going to be excitement and discussion of the tournament in the workplace by many football fans and some of this may involve nationality, possibly even race. For example, there will no doubt be “banter” in the workplace between Scottish and English employees regarding the latter’s prospects of progressing and performance in the tournament.

When “banter” becomes offensive or insulting, employers are at risk of bullying and harassment claims, the problem being that one employee’s idea of a light-hearted discussion can be interpreted quite differently by another member of staff.

Employees have a right to be protected from harassment on a number of protected grounds which includes race and nationality. Harassment is defined as ‘any unwanted conduct that has the purpose or effect of violating an employee’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment’ and, as such, if an unlawful harassment complaint is made on the grounds of race and nationality this may form the basis of an employment tribunal claim against an employer.

Employers are required to take reasonable steps to prevent any such unlawful harassment taking place at work. Employers, therefore, may want to consider issuing a reminder to employees that any bullying or harassment on the grounds of race or nationality will be dealt with very seriously and may trigger disciplinary proceedings. After all, an employer will almost always be held responsible for the workplace discriminatory actions of its employees, unless the employer has clear anti bullying and harassment policies in place and can show that they have taken reasonable steps to ensure that those policies are properly communicated and implemented.

A proactive attitude by employers towards preventing bullying and harassment will minimise the risk of any claim arising in the first place. Employers should consider the following pointers in order to stop bullying and harassment before it starts:

• Ensure managers create the right culture and are vigilant in identifying a problem
• Establish a “zero tolerance” environment in the workplace towards bullying and harassment
• Have a clear policy and procedure in place
• Communicate the policy and procedure clearly and effectively to employees

Unfortunately, it is often the case that an employer will be unaware of any bullying and harassment until they receive a formal grievance or an employment tribunal complaint from an employee. Once bullying or harassment has been reported, employers should consider the following in order to put a stop to the alleged conduct:

• Treat the matter seriously
• Listen to what has happened
• Explain options available i.e. informal or formal process
• Handle the matter as speedily as possible
• Guard against possible victimisation by the alleged harasser or other staff

Bullying and harassment is unlikely to be the only World Cup related workplace issue employers will have to deal with. Employers should have a strategy to deal with pressure from their employees, irrespective of the employee’s race and nationality or gender, who may be eager to watch one of the 32 teams.

Productivity and Absenteeism

While there is no legal right for employees to seek time off to watch the matches (except by taking holiday in the normal way with the appropriate approval) a sensible, workable compromise may reap benefits for all. ACAS advise that employers should try to be:

• Flexible: for example, altering start and finish times or allowing longer lunch breaks. Needs of all staff have to be balanced, including those who have no interest in the World Cup
• Clear as to expectations of employees: in terms of attendance and performance during the World Cup
• Communicative: Start talking to employees about the World Cup sooner rather than later and how you hope to manage leave and working hours
• Open and honest: If you cannot accommodate certain changes to your work practices then say so. Remind employees that any changes are only temporary
• Fair: Need to be fair when responding to requests for time off and avoid favouritism. Must ensure that those who are not interested in the World Cup are not treated differently as a result

Employers must make sure they open up these benefits to everyone, making sure to treat all employees fairly and consistently.

Clear communication is key. Should employers seek to put some temporary flexible working arrangements in place, it is fundamental that the employer sets out clearly in advance what is expected of employees.

Whilst flexibility will help to motivate and engage staff, employers should be aware of employees who abuse any such benefit. With kick off times of 12.30pm, 3.00pm and 7.30pm, employers should be alert to any suspicious absenteeism. Employers should warn employees that any suspicious absenteeism may attract disciplinary action and may require that all absences during the World Cup will require medical evidence of sickness irrespective of the duration of the absence. An employer may, however, be required to pay for a medical certificate for an employee who has been absent for less that 7 days if that certificate is necessary.

Summary

In relation to bullying and harassment, by being clear with employees at the outset as to what is expected and what is not appropriate, employers should prevent bullying and harassment in the first place and be better placed to defend any action that may come. In relation to absenteeism the needs of the business comes first. Where practicable, however, employers, should, seek to be flexible and set out clearly what is and is not permitted and the consequences of abusing the system.

Managed correctly, the World Cup has the potential to provide a boost to employees at a time when the continuing economic climate threatens morale.

Further Information

For further information please contact Barry Nichol or usual contact within the Employment team.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.