The World Cup kicks off 11 June. Employers must ensure now that they are on the ball, their employees are on side and everyone is playing the same game. Whilst predominantly employers operating shift systems will be affected by the large number of evening and weekend games, other employers should not underestimate the potential disruption the afternoon kick offs and, indeed, the World Cup as an event in itself may bring to their workplace. Some simple preparatory steps now will save employers a World Cup hangover they may regret.
For further information on any of the articles in this edition of the European Employment Update please get in touch with your usual OC contact or any member of the OC Alliance employment team.
Avoiding Own Goals - the Netherlands
To avoid red card scenarios, from a practical perspective, employers should:
We highlight below some specific legal and practical concerns in England.
The CIPD has produced a guide for employees which can be found here. Key practical and legal considerations will be:
Requests for Leave
Apply the applicable leave policy – a holiday policy or perhaps a specific policy for such events. Unless the leave policy provides otherwise, requests should be dealt with first come first served. In particular, be wary of potential sex, race and potentially age claims. Denying a woman leave for shopping, a German national leave to watch a Germany match or an older worker holiday due to an expectation that there will be a large number of requests from young English male nationals to watch the Wednesday match may give rise to a successful sex, race and age discrimination claims respectively. Compensation for such claims is unlimited.
Dealing with a "Soccer Sickie"
Employers must follow their usual sickness absence procedures and pay sick pay as appropriate (provided of course the employee complies with the necessary procedures). Return to work interviews should be conducted and only if there are genuine concerns should these be investigated further and as appropriate the matter dealt with as a disciplinary matter. An automatic assumption that sickness on or following a match day is football related will leave an employer vulnerable to claims of disability discrimination and unfair and wrongful dismissal where the employee is dismissed or resigns in response to the employer's actions. Employers may want to remind employees that the company reserves the right to investigate any "sickness" absences and as appropriate deal with them under its disciplinary procedure.
Discouraging Absenteeism
Employers should consider discouraging absenteeism by permitting temporary flexible temporary working practices during the tournament (such as shift swapping, changes to hours on match days). However:
Another option will be to show key matches in the workplace (but again, bearing in mind race discrimination issues where only say national matches are shown). Aside from the advantage of employee morale, employees will be onsite to deal with any urgent issues and may avoid the potential hangover resulting from watching the match elsewhere.
Sideline Distractions
Potential performance and misconduct issues include overuse of the internet (checking on team news, performance etc), rushing or not finishing tasks to leave on time and the affect of drinking (perhaps during the day if shift working or hanging over from the night before) impacting on work performance and harassing behaviour towards colleagues.
Whilst employers may be keen to quickly set down a firm marker on acceptable behaviour where such issues arise, to avoid claims of wrongful and unfair dismissal, such matters should be dealt with in accordance with the applicable policy. Performance, drugs and alcohol, IT and disciplinary policies may all be relevant. Employers will always be justified in taking a hard line against drinking in the workplace on health and safety grounds. Employees who operate machinery, drive or who are responsible for the safety of others can pose a serious health and safety risk if allowed to carry out their normal duties whilst under the influence of alcohol or hung-over. However, be aware that alcoholism is a disability so care will need to be taken if this is revealed to be a serious issue to avoid the risk of disability discrimination claims. To minimise the risk of harassment claims, the affected employee should be invited to raise a grievance in accordance with the employer's grievance policy or as applicable under any separate harassment policy.
All such policies should be revisited to check they adequately deal with any potential situations and, as appropriate, depending on the employer's tolerance to any issues (for example, it may accept that internet use will increase for this period), the policies re-circulated or a gentle reminder provided to employees.
National Pride
Employees may be keen to vocalise and demonstrate through World Cup paraphernalia their national pride in their team. However, employers should ensure that such demonstrations of affection and emotion do not create an environment where employees of other nationalities or those who may have no interest in football, feel harassed on grounds of their sex, race or age.
Employers will be liable for unlawful discrimination on grounds of harassment where they have failed to take reasonable steps to prevent it. Employers should consider now whether it is appropriate to ban any such paraphernalia, remind employees to show sensitivity to one another, offer to speak to any employees who have any concerns and reiterate any dress code policy. What steps are appropriate will depend on the make up of the workforce and whether such a message is felt to be required albeit that it may dampen World Cup spirits and morale.
Off the Pitch
Where an employee commits an offence outside work, such as being drunk and disorderly, assault or other act of hooliganism, it may still be appropriate to investigate and take disciplinary action where such action adversely impacts the employer's reputation or the employee's ability to perform their job. Where dismissal is a possibility, an employer must ensure that it follows a fair procedure to avoid the risk of unfair dismissal claims. An employer must not simply rely on police or media reports.
An employer may also be able to stop pay where an employee is unable to attend for work because he/she is detained in custody. Where an employee is remanded in custody for a period of time, an employer should generally continue to employ the employee pending the outcome of any hearing, although it can stop pay since no work is being performed. Legal advice should be sought.
Julian Hemming
julian.hemming@osborneclarke.com
+44 117 9173582
We highlight below some specific legal and practical concerns in Germany.
Despite the World Cup, it is "work as usual" in Germany. Empoyees will be required to continue to perform their normal job and contractual duties during working time. However, employers may be rightly concerned that during this period employees may be more distracted resulting in a lower quality of work or they make take unauthorised absence. Employers should plan for these risks and take steps as appropriate to deal with them.
Watching Away
Whilst an employer with pressing business needs may well want to issue a ban on taking leave during the World Cup – hating football is not a sufficient reason! The Federal German Holiday Act requires an employer to present business reasons as to why an employee should not be permitted to take the time off on the date they have applied for. However, the law does permit an employer to also take social reasons into account when determining whether or not to grant leave. In Germany there is a risk this may cause issues since during the Cup many Bundesländer have summer school holidays (schulferien) start and hence employees with children may be able to claim priority for their summer holidays over football lovers with no children.
Half Time…?
In Germany, most football lovers will almost certainly be seeking leave on the afternoon of Friday 18 June 2010 to see Germany vs. Serbia. Whilst the law requires that statutory leave should be taken in a minimum of two week blocks to enable the employee to take a proper break, many employers grant more holiday under the contract of employment and these additional days may be taken as half days.
Clear Fouls and counterattacks
Staying away from work without an employer's agreement is a clear foul. Employees denied leave however could seek injunctive relief from a Labour Court (Arbeitsgericht) against an unfair or illegal refusal within short notice. Employers should beware of this counterattack.
Where an employee calls in sick, an employer could ask for a doctor's certificate even on the first day of absence in special circumstances However, such a (yellow) certificate is not a "yellow holiday paper" – it is just an indication and not final proof of genuine ill health! Employees who are incapable to work are entitled to sick pay – this is so even if they are capable of watching the match!
Consequently, it will be a clear foul where an employee is absent without permission to take holiday or without being incapable to work (refusal to work). In such circumstances, it will be open to an employer to consider issuing a red card (termination), potentially without notice of prior written warning depending on the circumstances.
Working Flexibility
Where there is nothing fixed in an employee's employment contract, an employer is free to determine an employee's working time – start and finish times and breaks – within legal parameters. Accordingly, in such circumstances, an employer is free to make changes to an employee's working time during the World Cup period. Further, for those companies where a works council exists, it will have a right of co-determination and may take the initiative and apply for World-Cup-friendly shifts of working hours. Where an employer decides to apply a flexible working time regime (Gleitzeit), every employee will be free to use overtime and take hours or days off, according to the specific rules of that business.
It is also always open to an employee to ask for individual permission from their line manager for time off. Whilst there is no right to unpaid leave, where both employer and employee agree it is permitted..
It may come as a surprise for many employers but employees in Germany are not obliged to work overtime where there is no requirement to do so in their contract of employment. Consequently, in such circumstances, employers should not proceed on the expectation that employees will agree to any overtime during the World Cup. However, where an employer has a right to ask for overtime, it is permitted to do so – even during important matches – although the employer must also take into account the legitimate interests of employees.
Radio, TV or online live ticker?
In Germany, employees are responsible for their own performance. Consequently, the Federal Labour Court has determined that an employee may listen to the radio where he/she is able to focus on their work. However, this will not be the case where colleagues or customers may be disrupted and certainly not in jobs with special circumstances. Whilst it is generally accepted that watching television cannot be combined with working, it remains arguable that there may be jobs where "listening" to the television is an option.
Where private internet usage is forbidden, following an online live ticker will be a breach of contract. But even where allowed, tracking one or more matches instead of working will be seen as a breach of the contractual duty to work during working time.
Where an employee is found to be following matches via television or a live ticker and which is not permitted, normal disciplinary procedures apply. Employers should consider issuing Yellow Cards (written warning: Abmahnung) and ultimately a Red Card (Dismissal for reasons of behaviour: verhaltensbedingte Kündigung). However, employers need to be careful – as is usual practice – a Red Card will usually only be appropriate after prior written warnings. It will only be in extreme cases that a termination without notice may be permissible (fristlose Kündigung) and without any written warning.
TV license fees (GEZ)
Usual TV licence fees apply at work. The fact that an employee has paid a licence for their own radio or television at home will not be sufficient. Having a radio or a TV or any other item capable of receiving programmes incurs the duty to pay the appropriate licence fees to the State broadcasting organisations via the GEZ (Gebühreneinzugszentrale der öffentlich-rechtlichen Rundfunkanstalten in der Bundesrepublik Deutschland = Licence fee collection centre of the public broadcasting organisations in the Federal Republic of Germany).
Shirts, Alcohol, Betting Games, National Flags
Whether or not employees are permitted to wear football shirts will depend on the business' dress regulations.
Alcohol at work can be problematic. Whilst there is no general legal ban on alcohol at work – some employers have issued such a ban for their specific businesses. Further, employees are obliged to be able and capable to perform their work. Drinking can influence an employee's capability to focus on their work and to work quickly and accurately. Consequently spending the lunch break drinking in a pub – or even having still too much residual alcohol from last night's match – can be a breach of contract. Where this occurs, employers can and should send employees home and will not have to pay salary for that working day. Furthermore, a written warning (Abmahnung) can be issued.
Running a betting game at the workplace is permissible provided it is not run during working time. Employees may bet with money provided everyone participates voluntarily.
Where employers generally permit decorations in the workplace, employees may bring national flags or posters of their favourite players. However this is subject to the obligation on the employer to prevent the creation of a harassing environment. Where an employee is found to have harassed or discriminated against another employee(s), an employer should issue a clear response that such conduct is unacceptable, usually in the form of a written warning (Abmahnung).
Anke Freckmann
anke.freckmann@osborneclarke.com
+49 221 5108 4052
Sonja Riedemann
sonja.riedemann@osborneclarke.com
+49 221 5108 4118
We highlight below some specific legal and practical concerns in Italy.
For those employers operating in Italy, things are perhaps a little less organized, or a little less formal than in other jurisdictions - or it may simply be that everyone is so used to having football as a part of their daily lives that the fast approaching World Cup will not be a particular concern for many employers!
Taking time off
Employees who wish to take time off work to watch a match are entitled to request a day or half a day's holiday. However, an employer may refuse a request if it is not compatible with the overall needs of the business.
Dealing with a "Soccer Sickie"
Employer should consider reminding employees that during the World Cup, the mandatory rules applicable to sickness will continue to apply. An employee will need to inform his/her employer promptly of his absence and provide a certificate. Where an employer is concerned as to the genuineness of an employee's absence, an employer is entitled to ask the competent Authority for a medical visit at home in order to check the real state of employee’s health.
On the pitch
In practice, many employers are likely to adopt the ‘maxi plasma screen’ approach to the World Cup and install a huge screen in the canteen, allowing workers to watch snippets during lunch, tea breaks, etc, within the limits of necessary production requirements.
In an office environment there is of course also a real risk that computer-based employees will log on to some online streamed SKY /digital tv sports channel. Apart from the damage in terms of loss of work/concentration while glued to the screen, there is also a practical risk that company activity may be slowed down with overloading of the broadband connection. It may therefore be opportune for employers to issue timely notices to all staff that they are not permitted to access matches on the internet for obvious reasons. If employees subsequently are found to have violated these specific instructions, then employer would be entitled to apply a disciplinary sanction in line with the gravity of the breach and of course within the limits of the applicable CCNL (in practice the maximum plausible sanction would be a fine – calculated as a specific number of hours’ pay - detracted from pay slip).
Marco Lanzani
mlanzani@sla.it
+39 025 413 1748
We highlight below some specific legal and practical concerns in The Netherlands.
Time out
According to Dutch Law an employer should agree with any holiday requested by an employee unless there are urgent business reasons. There is no legal minimum period to apply for a day off but a request at short notice can more easily be rejected than in case the employee applies for a day off long in advance. During the World Cup employers are advised to adopt a flexible attitude. It would also be prudent to ask any employees if they have any intentions to ask for a day off during the World Cup so as to manage resource requirements.
Reporting ill
Where an employee reports in as ill the company doctor should be consulted in order to decide whether the employee is indeed not capable to perform their duties. This procedure does not change in case of a possible "soccer sickie" and in that situation the company doctor should immediately (on the same day) contact the employee in order to check whether there is indeed incapacity to work. It should be agreed in advance with the company doctor that this same day approach will be adopted during the World Cup and/or in cases of possible soccer sickies,
Where the employee is not found to be ill by the company doctor, an employer can decide not to pay the salary during that period of suggested illness. Also other disciplinary measures such as a written warning may be taken in accordance with applicable procedures.
Practical solutions
Although an employer is not obliged to arrange facilities in order for employees to see the matches of the national team it is advisable to arrange such facilities in case a match has to be played during working time unless this will affect the day to day business of the company too much. This will avoid unacceptable absence and will also help in achieving a good working spirit. At least clear rules should be given with regard to requests for leave at short notice, unacceptable absence and non-performance due to being more involved with winning the World Cup instead of doing their job.
In that situation there will only be winners and the World Cup will be a success for all parties. Enjoy the World Cup!
Henriette Dekker
hdekker@plp.nl
+31(0) 104406490
Time out
It is difficult to say if Spain will be as excited about the World Cup as England or Germany! However, there is likely to be a significant increase in the requests for leave during the days of the competition.
A large number of collective bargaining agreements in Spain entitle employees to take some days of holiday, aside from the annual leave, normally 30 calendar days. These days are called “free disposition days”. Employees can otherwise always request to take annual leave unless an applicable collective agreement provides for annual leave to be taken at some specific times during the year in order that it will not interfere with necessary business requirements.
Under Spanish regulations, an employer must accept an employee’s request for leave unless there is a real business reason not to do. Where an employer does refuse, an employee is entitled to bring a claim before the labour courts. The process for doing so is very fast and straightforward.
In common with other jurisdictions, employers are therefore well advised to adopt a flexible attitude to granting leave requests and to take steps now to see if employees intend to take time off during the World Cup so as to manage their resources.
Discouraging absenteeism
Like other jurisdictions, there may be those employees who are tempted to take a day off sick to watch a match. Where an employee is sick, he or she must obtain a medical certificate from the public health services stating their incapacity to work. This certificate must be issued on the first day of their sickness absence and must be sent to the company within three days of the sickness absence.
Although it is not common practice in Spain where an individual is only absent for a short period of time, an employer could potentially ask an employee to see the company doctor in order to confirm that the sickness absence is genuine and prevents the employee from performing his or her duties.
Where the employee does not provide the company with the official medical certificate (“parte de baja”) or is not found to be ill by the company doctor, an employer can decide not to pay the salary during that period of alleged illness. Also other disciplinary measures such as a written warning or even suspension without pay for some days may be taken, in accordance with applicable collective bargaining agreements.
In order to avoid any possible cases of "soccer sickness" employers might wish to consider reminding employees that during the World Cup the mandatory rules applicable to sickness will continue to apply.
With a number of evening and weekend matches, employers should be aware that employees in Spain are not obliged to work overtime where there is no requirement to do so in their contract of employment or in the applicable collective agreement. Additionally, part time employees who have agreed in their employment contracts to carry out some overtime can refuse to do so provided they communicate this intention to the company on 15 days notice.
Accordingly those employers who rely on voluntary overtime i.e. where there is no commitment on employees under their contracts to accept overtime, should plan now to ask relevant employees about their intentions vis-à-vis the World Cup.
Practical solutions
Given that two of the three qualifying matches for the Spanish national team are to be played from 20.00 p.m which for many employees falls after the end of the normal working day, it is hoped that significant issues arising from the World Cup should not arise. However, as highlighted above, employers would be sensible to identify in advance which employees anticipate being absent on any days during the World Cup or who do not plan to work overtime. It may also be appropriate for those employers who are concerned to remind staff of sickness rules, the consequences of unjustified absences from work and restrictions on internet use (for example, employees may be tempted to download software enabling them to watch the matches).
Finally, employers may wish to consider for those matches which fall during the working day – for example on Wednesday 16 June - to arrange facilities for employees to watch the match at work where this will not affect the day to day business of the company. This may avoid absences from work on that day and moreover help to achieve a good working spirit.
Eva Otaegui
Eva.otaegui@osborneclarke.es
+34 934 191818
England
|
Group Stage (Local Time) |
Saturday 12 June |
19.30 |
|
Friday 18 June |
19.30 |
|
|
Wednesday 23 June |
15.00 |
|
|
Winner Group Stage |
Runner-up Group Stage |
||
|
Round of 16 (Local Time) |
Saturday 26 June |
19.30 |
Sunday 27 June |
15.00 |
|
Quarter Finals (Local Time) |
Wednesday 2 July |
19.30 |
Thursday 3 July |
15.00 |
|
Semi Finals (Local Time) |
Tuesday 6 July |
19.30 |
Wednesday 7 July |
19.30 |
|
Match for third place (Local Time) |
Saturday 10 July |
19.30 |
|
Final (Local Time) |
Sunday 11 July |
19.30 |
France
|
Group Stage (Local Time) |
Friday 11 June |
20:30 |
|
Thursday 17 June |
20:30 |
|
|
Tuesday 22 June |
16:00 |
|
|
Winner Group Stage |
Runner-up Group Stage |
||
|
Round of 16 (Local Time) |
Saturday 26 June |
16.00 |
Sunday 27 June |
20.30 |
|
Quarter Finals (Local Time) |
Wednesday 2 July |
20.30 |
Thursday 3 July |
16.00 |
|
Semi Finals (Local Time) |
Tuesday 6 July |
20.30 |
Wednesday 7 July |
20.30 |
|
Match for third place (Local Time) |
Saturday 10 July |
20.30 |
|
Final (Local Time) |
Sunday 11 July |
20.30 |
Germany
|
Group Stage (Local Time) |
Sunday 13 June |
20:30 |
|
Friday 18 June |
13:30 |
|
|
Wednesday 23 June |
20:30 |
|
|
Winner Group Stage |
Runner-up Group Stage |
||
|
Round of 16 (Local Time) |
Sunday 27 June |
16.00 |
Saturday 26 June |
20.30 |
|
Quarter Finals (Local Time) |
Thursday 3 July |
16.00 |
Wednesday 2 July |
20.30 |
|
Semi Finals (Local Time) |
Wednesday 7 July |
20.30 |
Tuesday 6 July |
20.30 |
|
Match for third place (Local Time) |
Saturday 10 July |
20.30 |
|
Final (Local Time) |
Sunday 11 July |
20.30 |
Italy
|
Group Stage (Local Time) |
Monday 14 June |
20:30 |
|
Sunday 20 June |
16:00 |
|
|
Thursday 24 June |
16:00 |
|
|
Winner Group Stage |
Runner-up Group Stage |
||
|
Round of 16 (Local Time) |
Tuesday 29 June |
16.00 |
Monday 28 June |
16.00 |
|
Quarter Finals (Local Time) |
Thursday 3 July |
20.30 |
Wednesday 2 July |
16.00 |
|
Semi Finals (Local Time) |
Wednesday 7 July |
20.30 |
Tuesday 6 July |
20.30 |
|
Match for third place (Local Time) |
Saturday 10 July |
20.30 |
|
Final (Local Time) |
Sunday 11 July |
20.30 |
The Netherlands
|
Group Stage (Local Time) |
Monday 14 June |
13:30 |
|
Saturday 19 June |
13.30 |
|
|
Thursday 24 June |
20:30 |
|
|
Winner Group Stage |
Runner-up Group Stage |
||
|
Round of 16 (Local Time) |
Monday 28 June |
16.00 |
Tuesday 29 June |
16.00 |
|
Quarter Finals (Local Time) |
Wednesday 2 July |
16.00 |
Thursday 3 July |
20.30 |
|
Semi Finals (Local Time) |
Tuesday 6 July |
20.30 |
Wednesday 7 July |
20.30 |
|
Match for third place (Local Time) |
Saturday 10 July |
20.30 |
|
Final (Local Time) |
Sunday 11 July |
20.30 |
Spain
|
Group Stage (Local Time) |
Wednesday 16 June |
16:00 |
|
Monday 21 June |
20:30 |
|
|
Friday 25 June |
20:30 |
|
|
Winner Group Stage |
Runner-up Group Stage |
||
|
Round of 16 (Local Time) |
Tuesday 29 July |
20.30 |
Monday 28 June |
20.30 |
|
Quarter Finals (Local Time) |
Thursday 3 July |
20.30 |
Wednesday 2 July |
16.00 |
|
Semi Finals (Local Time) |
Wednesday 7 July |
20.30 |
Tuesday 6 July |
20.30 |
|
Match for third place (Local Time) |
Saturday 10 July |
20.30 |
|
Final (Local Time) |
Sunday 11 July |
20.30 |
These materials are provided for general purposes only. Osborne Clarke does not accept liability for the contents of these materials and legal advice should be taken in respect of a particular matter.
