Although many London and UK based businesses are hoping that the Games will bring increased profits, anticipated transport misery in the Capital is leaving some employers fearful of how they will soldier on with a reduced workforce.

There are a few potential traps that employers can fall into, so the key to winning the race is to start preparing now. Your plan should involve active dialogue with your employees. Be flexible, open to suggestion and consider temporary changes to employment practices to facilitate staggered working hours where appropriate.

Employee Trap 1: No work no pay?
If your employees are not able to get to work, are you able to dock their pay? The answer depends on whether or not there is a contractual right to be paid. For most employees (excluding for example, piece workers or hourly paid workers with no guaranteed hours) the question is whether or not they were ‘ready and willing’ to work but were unable to because of unavoidable travel disruption. The case law on pay during unavoidable absence suggest that where an absence is involuntary and unavoidable, an employee is entitled to be paid. If there is an entitlement to be paid, then not paying them will be an unlawful deduction of wages.

This illustrates the importance of preparation with staff to facilitate journeys into work with adjusted working patterns or hours if necessary. It also provides employers with an argument that an absence due to travel disruption was ‘avoidable’ and therefore there was no right for the employee to be paid for the absence.

The common law position as described above, can be altered by means of a contractual provision saying that employees who are absent without authority will not be paid. Such a contractual provision can be express or implied through custom and practice or arise through a collective agreement which is expressly or impliedly incorporated into the employees’ contracts of employment. That is often the case for example with employees on sickness absence where the contract usually provides for an entitlement to Statutory Sick Pay and/or Contractual Sick Pay for a limited period only.

Trap 2: Dealing with sickness absences
Employers should aim to head off sickness absences that coincide with the Olympics by using both a carrot and a stick approach. For example, providing facilities in the workplace for the major events to be televised will help to alleviate the temptation for staff to ‘throw a sickie’ for the major events. Developing and communicating a clear statement about sickness absences and the monitoring of sickness over the games (particularly where there are a limited number of staff due to a peak in holidays) would also place employers in a stronger position to investigate rather more fully the reasons for an absence over this period and to determine whether the absence warrants disciplinary proceedings on the grounds of misconduct.

Managing the team
Coach for success; call staff meetings well in advance of the Olympics to discuss all of the issues and to cover off any arrangements you plan to put in place for dealing with absences, watching the games at work, alternative working arrangements and holiday requests.

Ensure that you are fair about dealing with holiday requests. ‘A first come first served basis’ is a fair policy. However, whatever your policy is for allowing time off during the games, make your staff are aware of that policy and be consistent in applying it.

Winning tactics
If you’re planning to allow employees to work from home or a temporary location and have concerns about them completing their work, the Lawful Business Regulations authorise employers to monitor but not record employee communications. If you feel this is a necessary step, we are happy to provide further guidance in this area.

Practical guidance and advice
The Olympics start on 27th July and end on 12th August. The Paralympics are to be held from 29th August to 9th September.

The London 2012 website advises Londoners to avoid where possible travelling between 7–10am, 12 noon–2pm, 4–7pm and 10pm–midnight. Details of road closures and public transport timetable alterations are published on the Transport for London website.
Encourage staff to check travel websites such as TfL as the time approaches. You might also hand out maps of your area enabling staff to consider the impact on their journey. If your business is affected, consider putting suggested access solutions on your website for your suppliers and clients as well as your employees.

For further advice on employment law and managing your employees during the Olympics, please contact:
Linky Trott, Partner

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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