Football vs. Belgian employment law: 1-0?
According to a survey among 1,000 Belgian employees, 6 out of 10 employees intend to watch Euro 2016. Another survey among 200 HR managers revealed, however, that 7 out of 10 Belgian employers fear a reduction in productivity in the coming weeks due to Euro 2016. One should, perhaps, not be too surprised knowing that 2 employees out of 3 expect management will turn a blind eye if an important match takes place during working hours.
Employers can of course hope for a swift Belgian exit out of France – but that would be a bit unsporting, wouldn’t it? On the other hand, if the Red Devils live up to their status as a dark horse and would go all the way to Paris, employers will be faced with a month of ever-increasing football fever. This article aims at helping employers to deal with a few issues which are likely to arise in the Euro’s slipstream.
Alcohol: employers in the driver’s seat
First up: what about employees who insist on showing their patriotism at work by cracking a bottle of Belgian beer? And can the employer offer alcohol at a Euro 2016 social event during or after working hours?
Well, it’s all about your company rules. Since 2010, it is mandatory to include a policy on the use of alcohol (and drugs) in the company’s work rules. The relevant national CBA leaves it up to employers to actually determine the content of this policy: different companies can thus have completely different policies on the use of alcohol. Some companies will have a no-exceptions ban while others may take a more lenient approach, and both could be justified depending on the company culture, industry etc. In other words: there is no one-size-fits-all approach for the use of alcohol on the work floor.
Most company policies will include a general prohibition on the use of alcohol during working hours, while at the same time providing for an exception for social events which are organized or at least approved by the employer and where the employer allows the use of alcohol. However, even if the company has no rules on the issue whatsoever (although it should), the concept of employer’s authority and the company’s general OH&S responsibilities give it all the necessary power to regulate the use of alcohol during a Euro 2016 event.
Lastly, as always with alcohol, it’s a good idea to keep Cicero’s lesson in mind: “Never go to excess, but let moderation be your guide”. That especially holds true when the employer allows alcohol or offers it to employees during a football event. It is important for employers to clearly communicate to employees that they are in no way ‘expected’ to drink and to act accordingly by also offering non-alcoholic beverages and keeping an eye on employees who are perhaps a little too enthusiastic. This is not only a ‘moral’ obligation, as depending on the circumstances the employer could be held civilly or even criminally liable for his role in accidents caused by alcohol.
Betting: rien ne va plus?
Betting is strictly regulated in Belgium, and in theory a bet organized at work during Euro 2016 could be a violation of the relevant rules, which are criminally sanctioned. But the Belgian Gaming Commission (the regulatory body), admitted in a recent press interview that they simply do not have sufficient inspectors to organize controls at the work floor. In the same interview, the Commission therefore gave some guidelines for adult non-professional gamblers (which can include office sweepstakes). The stakes should be limited to 2 EUR per game per day, and the game on which the bet is placed must be played on the same day. Moreover, the only results on which one should bet are ‘win’, ‘draw’, ‘lose’ or ‘final score’. Minors must in any event be excluded from any bets.
All this of course does not mean that employers are required to tolerate bets which are organized by employees in the office. The company’s work rules must contain a list of prohibited behaviour at work, and will often mention an explicit prohibition to organize lotteries or betting games at the work floor. Employees violating these rules can be sanctioned by the employer in accordance with the work rules, even if those employees would have complied with the above mentioned guidelines.
Professional dress code during Euro 2016
Can you stop an employee from coming to work wearing a Marouane Fellaini wig or Eden Hazard’s football shirt? Unless prescribed by health and safety rules (e.g. the mason wearing a safety helmet), the employee is as a rule free to dress the way he wants.
In practice, it is however not unusual that company policies impose certain dress codes. Failing to meet the required dress code within the company (in particular if the employee is in contact with customers) could lead to sanctions. So to a certain extent employers can act towards an all too eccentric dress code of the supporter/employee, but it should be no surprise that labour tribunals generally consider that inappropriate clothing can not lead to a dismissal for serious cause without notice or indemnity in lieu of notice.
Watching a game during working time
We’ll start by throwing in the statutory rule: employees are under an obligation to perform their work in good faith in the manner that has been agreed upon and in accordance with the orders and instructions of their employer. Practically speaking, this obligation prevents an employee from watching an entire football game during working time, unless if the employer has explicitly approved this. Most companies will have an IT policy which specifies this general obligation with regard to the private use of Internet and/or IT tools put at the employee’s disposal, but the answer will usually remain the same.
Indeed, such policy often provides that a reasonable private use of Internet is allowed insofar as it does not conflict with the company’s interests and remains within certain limits (e.g. to check traffic or weather updates). Tempting as it may be, focusing for 90 minutes (or more) on a football game instead of working clearly does not fall within this definition. The answer is even more straightforward if the company’s IT policy simply prohibits the use of Internet or video streaming for private purposes, which is perfectly possible.
Depending on the circumstances, violations by employees can lead to sanctions. However, employers should be aware that the verification of the employees’ compliance with IT policies is subject to a very specific legal framework in the nationally applicable CBA nr. 81.
Combination of football and working time
Some employees can freely choose the precise time at which they start and end their working day within the limits set by the employer and provided the weekly working time is respected (the so-called ‘gliding’ or ‘floating’ working schedule, which admittedly remains a bit of a grey area in the law).
If so, fans who are keen on not missing a second of their favourite games can start working earlier, take a short break and stop working earlier in order to watch the game in the late afternoon. When a match ends late in the evening, these employees could start and end their working day a bit later the next day.
If provided in a CBA or in the work rules, employers can introduce a temporary system of ‘flexible’ working schedules which allows them to replace the regular working schedules by an alternative schedule (compatible with the games of Euro 2016) as included in the work rules. This alternative working schedule is limited to maximum 2 hours below (or above) the normal daily working schedule provided that the daily working time does not exceed 9 hours. The weekly working time may be 5 hours below (or above) the normal weekly working time provided it does not exceed 45 hours. Certain formalities apply, and the average working time will have to be respected over a reference period.
If a temporary reduction of the weekly working time is not necessary or impossible, the employer could also simply replace the current working schedule by another working schedule mentioned in the company’s work rules, assuming that this would be more convenient for watching Euro 2016 games and that the employees are happy with this. It is highly recommended to post this new working schedule five working days in advance at the work floor.
Remember, however, that as from the 20th of June, no match of the Euro is scheduled during the work week before 6:00 pm.
If the employer organises the viewing of a football game during the working hours, this will generally be considered as working time if the employee remains at the disposal of the employer during this time. If the viewing of the match takes place after working hours or during the lunch break and provided that the employee is free to participate or not, the duration of the game will not be considered as working time.
Lastly, imagine our Red Devils would lift the trophy in Paris on Sunday 10 July! That would undoubtedly spark quite a few parties throughout the country which might continue into the small hours. Unfortunately, Sunday Funday has the annoying tendency to be followed by a Monday… It is worth pointing out that any absence from work (both on a game day or the day after) which is not due to illness or an accident and which is not justified by a valid reason entitles the employer to suspend the payment of the remuneration for the period of absence.
Football vs. Work: 1 – 1 after all?
First published on Ius Laboris Global HR.
Read more about sporting events and German employment law in our articles EURO 2016 and employment law in Germany and UK employment law considerations during EURO 2016 as well as Italian employment law considerations during EURO 2016.