PLC Magazine by Mark Callaghan and Jessica Lim
This article first appeared in the September 2024 issue of PLC Magazine.
The 2024 Paris Olympics graced us with many incredible sporting moments and demonstrated the dedication and commitment that athletes put into competing for their country at the highest level. No doubt the 2024 Paris Paralympics will do similar.
However, the games have also raised questions, in perhaps a more high-profile manner than any Olympics that has come before, about how athletes who have full-time jobs balance their gruelling training and competition schedules with the commitment that comes with full-time employment.
Time off work
Sporting endeavours, even those involving representation at the highest level, are given no special treatment by UK employment law. Employees are not entitled to any time off unless their contract of employment says otherwise, and so international sporting duty is essentially treated in the same way as any other side-hustle or secondary employment. Once any annual leave entitlement has been exhausted, further leave, whether paid or unpaid, must generally be agreed between the employer and the employee.
Some employers are generous and make significant efforts to give their employees the flexibility that they need to prepare and compete, while others may be less so. There were several high-profile examples of Olympic athletes who had to return to work soon after competing in Paris, or who lamented the difficulty of balancing their training schedule with their full-time job. The same will be true for many Paralympic athletes.
Outside interests
Further, an employee’s participation in sporting events will generally be considered an outside activity or interest. It is market practice in the UK for employment contracts to include a clause that prevents employees from performing any form of work for an organisation other than their employer, unless they obtain written consent.
A flexible employer might assess a request to perform outside work according to a number of factors, including whether the activity or interest in question:
- Competes with the business of the employer.
- Could affect the employee’s ability to perform their role and duties.
- Could create an actual or potential conflict of interest.
While participation in elite sports is unlikely to lead to any actual or potential conflict of interest, there is a chance that it could affect an employee’s ability to dedicate the required time and attention to the duties of their day job. There is therefore no guarantee for athletes that their employer will permit them to engage in professional sporting activities at all.
Time off for public duties
In circumstances where funding for both sport and culture is severely lacking, it is interesting to imagine a world where high-level sporting competition, or meaningful participation in the arts, is seen as a public benefit worthy of statutory leave. Employees who participate in certain public and civic duties are afforded time off to perform those valuable services; it is not impossible to imagine a world in which sporting and cultural endeavours are also considered worthy of similar protection.
Employees are entitled to take time off during their normal working hours to carry out certain prescribed public duties (section 50, Employment Rights Act 1996) (ERA). Applicable duties include acting as a Justice of the Peace, a member of a local authority, as part of a statutory tribunal,
for a police authority, and several others. An employee’s request to take time off to participate in public duties must be reasonable, and an employer can also impose reasonable conditions on the exercise of the right. It is therefore common for employees and employers to discuss and come to an agreement around the employee’s absence arrangements. But the fact that a right to take time off is codified does create a strong policy signal to employers that these duties are valuable and a request is not to be denied out of hand. While there is no express statutory right for employees to take time off where they are mobilised to perform duties for the reserve armed forces, there is an obligation for the employer to accept the employee back into employment after the period of mobilisation (section 1, Reserve Forces (Safeguard of Employment) Act 1985). The obligation is to accept them back to the same job and on conditions no less favourable, unless that is not reasonable and practicable. In practice, this often amounts to the same thing as the right to time off, and many employers elect to keep employees in employment during a period of military mobilisation and effectively treat it as a period of unpaid leave.
It might be argued that, at a certain level, participation in sport and culture constitutes a similar public good that is worthy of some form of protection. Pragmatically, it might also be said that, in a world where sport and culture are underfunded, some of the burden of facilitating individuals to participate in those arenas could be shifted to employers to secure continued success into the future. This may, however, be wishful thinking, and certainly it is not on the policy agenda.
Limits of flexible working
Realistically, high-level athletes, or, for that matter, talented musicians and artists, who are in full-time employment must use existing tools to try to balance their competing obligations and priorities. These tools include the statutory right to make a flexible working request, which allows employees to request a change to the hours that they work, the times when they are required to work or their place of work (sections 80F-80I, ERA; see News brief “New rights for employees: flexibility is the new watchword”).
This might permit athletes to request to work part-time, work compressed hours, or to work from home if they are otherwise contractually required to work in the office. It is not hard to see how flexible working could help an athlete with a busy training schedule, but it remains of limited use when what they need is a month off to compete for gold on the Olympic stage.
Mark Callaghan is a senior associate, and Jessica Lim is an associate, at GQ|Littler.