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Nimble footwork can stop football fever boiling over

Published on Monday, 16 Jun 2014
Pattie Walsh is a partner and head of DLA Piper's Asia-Pacific employment practice. She writes extensively for legal and HR publications, with a particular focus on multi-jurisdictional employment work.
Serious discrimination claims have been based on events surrounding previous World Cup tournaments.

 The Background

With the World Cup imminent, it seems a little unsporting to focus attention on the potential downside of such events for employers. Sporting occasions are part of the global calendar and bring together nations and individuals. They also support economies and bring people into countries they may not otherwise visit. The Rugby Sevens is lauded for its ability to attract people to Hong Kong and it acts as a magnet for business, meetings - and a little fun.

However, any sporting event of magnitude which attracts broad attention has the potential to create employment-law challenges for the unwary. For many organisations the risks are minimal, but it is helpful to consider potential issues.

The Issues

One of the key challenges for employers is deciding how to handle the situation when popular games occur during the working day. With an 11-hour time difference between Brazil and Hong Kong, some individuals will inevitably want to watch their teams during working hours. Of course, employers are under no obligation to allow staff time off work to enjoy any sporting event - unless individuals take leave or absence in line with the usual procedures. But many employers will want to accommodate such requests to the extent business allows and to be seen as flexible and accommodating. If no serious consideration is given to the issue, apart from having a negative impact on staff morale, it may also result in unauthorised absences or suspicious occurrences of sick leave.

It is important that employers take any decisions about allowing employees freedom to see the games, or even attend in person, in a fair and balanced way. Anti-discrimination law prohibits decision-making based on any principle of race or sex discrimination, including stereotyping on such a basis. Both sexes and all races should be treated equally and without any prejudicial stereotyping. It is key to respond to World Cup-related requests fairly across sex and nationality.

If an employer does suspect an individual is misusing sickness procedures either to see a game without agreement - or recover from jubilation or despair - it is important to remember that staff must fulfil all contractual and statutory obligations to be entitled to sick leave. Under Hong Kong legislation, sickness payments are only required when an individual is off for at least four days. To avoid any issues about the misuse of sickness entitlements, some employers may prefer to communicate clearly to all staff the process for sickness approval during this period.

It would be wise to make it clear that the sickness policy should not be abused and to specify a named individual or team to deal with sickness absence. This will promote consistency and ensure staff are fully aware of the scrutiny they should expect.

Employers are responsible for any discriminatory acts of their employees, even when such acts have not been authorised or are even known about. The Race Discrimination Ordinance prohibits discrimination on the grounds of race and this includes creating a "hostile or intimidating environment".

Employers need to be mindful and ensure that good-natured teasing and support for one particular team does not become discriminatory or hostile to those supporting other teams. Workplace social events are also subject to these rules and so any social activities should take this into account.

Employers who are unable to allow staff to take time off to watch games during the tournament should anticipate that employees may well use the internet to keep an eye on the scores, or even watch the games live. With this in mind, employers should be clear about the approach they want to adopt, and to the extent they need to rely on internal IT policies. These should be clearly referenced and made available prior to the tournament starting.

The Conclusion

These points are intended to prompt employers to consider what issues may be avoided by a little forethought. For some businesses, the risks and issues will appear academic, but for others, the knowledge that discrimination claims and bullying allegations often rise significantly during such events will serve as a reminder. Several serious discrimination claims have been based on events surrounding previous World Cup tournaments. But being transparent and clear will help avoid many issues.

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