As many employers know, the Olympic Games start on July 27. However, prior to that date we have Wimbledon, the Tour de France, the Ice Hockey World Championship, the US Open Golf Championship, and Euro 2012. We even have the Greco Roman Wrestling World Cup, though perhaps for some, this is not on the radar. Ultimately, this year -- like almost every other -- is brimming with enticing sporting events that employees wish to watch.

Given the location of Bermuda and the mix of nationalities who reside here, the varieties of sports that employees watch (for their very survival it sometimes seems) are vast in scope, and this can cause headaches when their desire to watch the game conflicts with their duty to be at work. This can sometimes range from the classic "sickness" absence (on the day of, or after the event) to employees watching or listening to the game on their computers. In this article we will look at both the legal framework in Bermuda and the practical way to manage productivity in this busy summer of sport.

The Employment Act 2000 ("the Act") is now into its second decade and still going strong. Part III of the Act deals with "Time Off" and covers things such as public holidays, annual vacation, public duties (Bermuda Regiment etc.) and sick leave (amongst others). There are no provisions in respect of "sporting leave". Indeed, perhaps unfortunately for employees, there is no specific legislation in force in Bermuda that provides a statutory right to miss work and watch a sporting event (even Cup Match, this falls under the Public Holidays Act 1947, a different beast!).

Given this we must then look at the contractual relationship between employers and employees. At its most basic level, a typical employment contract stipulates that the employee shows up at 9 a.m., works under the employer's reasonable instructions and then leaves at 5 p.m. In return, the employee is paid by the employer.

If the employer does not pay the employee or breaks any other critical term of the contract, then the employee can potentially resign, terminate the contract and sue for damages (what is commonly known as constructive unfair dismissal). On the other hand, if the employee breaches the contract, for example, by not attending work when he or she should (and with no reasonable excuse as to why), then the employer may be able to terminate the contract of employment, subject to carrying out the correct procedural requirements of the Act. These are broad and general principles, but form the backbone of how both employers and employees should approach this situation.

Unauthorised absences are normally misconduct issues under either the contract of employment or (by extension) the employer's disciplinary policy or procedure. So skipping work to watch sport is potentially (depending on the specific circumstances of the case) grounds for dismissing the employee and terminating the contract of employment (subject to adhering at all times to the provisions of the Act). The same would apply for disingenuous sickness absences, or continual lateness etc.

However, employers should be careful not to automatically categorise sickness absence during sporting events (or otherwise) as not "genuine". If you are suspicious about an employee's absences you should investigate the matter by questioning the employee when he or she initially reports the absence, or by conducting return-to-work interviews, which can help identify short-term absence problems at an early stage.

Employers who have tracked absence patterns will have more factual information on which to base their assumptions. Indeed many companies in Bermuda have a sickness absence policy whereby an employee must produce a letter from a doctor after a certain number of days absent. A combination of a clear policy and close management of absences is critical.

For example where an employee must personally telephone his or her direct line manager to report sickness absence, together with having to attend a return-to-work interview, will often reduce the number of absences.

Many employers have asked me what they can do about a decrease in productivity during major sporting events. In my experience, there are various ways to deal with this on a practical level. Some things to consider are:

  • Offering employees the opportunity to work at home or to schedule their work around specific events (while making clear the work that is expected of them). To this end, employers could avoid the costs associated with unplanned absenteeism, but bear in mind that adequate cover should be agreed to ensure that services or operations are not unduly affected.
  • Offering unpaid leave.
  • Offering flexible working hours to allow employees to start work early (in the anticipation of leaving early to watch the big game).
  • Offering the facilities to watch sporting events at work, which can also increase feelings of camaraderie among staff.

Ultimately it is the employer's decision about how they manage events such as the Olympics, and while it would be fantastic to be able to sit at home and watch a day of track and field, all employees must adhere to the parameters of their employment contracts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.