So unless you've been living in a cave for the last few weeks (and hey, we're not judging your choice of school holiday entertainment), you've probably become aware of Pokémon Go. Indeed, statistically, there's a good chance you're a Pokémon Go player yourself. For those not in the know, Pokémon Go is a web-based app that allows players to catch, train (and battle with) collectable digital creatures, which are animated on your smartphone, and can be superimposed on your actual surroundings as you catch them. The game has, over just a few weeks, become immensely popular and is hugely addictive. In fact, it’s so popular that we're starting to see reports of players injuring themselves by being so distracted that they wander into traffic, or in one report, off a cliff. When a rare Pokémon appeared in New York's Central Park recently, traffic chaos ensued as players simply abandoned their cars where they were, in the middle of the crowded streets, and the drivers raced off to catch the virtual creatures. Justin Bieber’s presence, reportedly, nearly went unnoticed.
So with this level of commitment, what are the implications on the employment relationship, if any? And what can employers do to protect themselves from the potential fallout?
Playing during work hours
Generally speaking, employees are expected to spend their work time working. Employees who are engaged in private pursuits during work time (be that Pokémon hunting, other app-based games, or any other personal activity) can expect to face a reprimand or even disciplinary action. While the consequences will of course depend on all the circumstances (including factors such as the level of personal activity, the nature of the work, any policies in the workplace and any relevant clauses in the applicable employment agreement) there have certainly been instances where employees have been warned, and even dismissed, for doing personal business during work time. We would recommend that the first step for employers should be to make expectations clear, be that with one employee in particular, or across the workforce. Explain what level of personal activity (if any) is acceptable during work time and what the consequences of breaching these expectations could be. This could be by way of a policy, a memo, or simply a verbal instruction. If an employee breaches these expectations the employer may be in a position to raise disciplinary allegations, and potentially issue a warning.
Using work data/resources
Again, generally speaking, the employer's resources are provided for work purposes. Physical items such as stationery, equipment and supplies cannot usually be appropriated for personal use.
Similarly, appropriating large amounts of electronic resources such as the employer's wifi, broadband or both (we are not sure that Pokémon Go has much impact) may be cause for concern, and potentially disciplinary action.
We would again recommend making the employer's expectations clear. In the case of electronic resources, this will likely be by way of an IT policy which covers how much personal use of email, internet, phone, data, etc is allowable. An IT policy should also cover other matters such security, unacceptable use (such as pornography, gambling, etc) and reputational issues (e.g. email and social media rules or etiquette). A policy makes it much easier for an employer to take action when employees engage in behaviour that the employer finds unacceptable.
There has been at least one employee in New Zealand who resigned to pursue full time Pokémon catching. It is certainly not out of the question that some employees may take it on themselves to take a sick day in order to catch a Porygon. An employee may use their sick leave if they are sick or injured, or if their spouse or someone who depends on them for care is sick or injured.
If an employer suspects that an employee's sick leave is not genuine, the employer can request a medical certificate. The employer should not act inconsistently with its obligations under the Holidays Act 2003, the employee’s employment agreement and any relevant policies.
If the employer has strong grounds to suspect that sick leave being taken is not genuine, the employer can commence a formal disciplinary process. In Griffith v Sunbeam Corporation Limited., Couch J stated that:
“It may also be said that, in general, abuse of the right to paid sick leave will be serious because it involves obtaining payment by a false pretence or, at least, attempting to do so. Having said that, not every case of misuse of the right to sick leave will necessarily be capable of amounting to serious misconduct.”
In the event that an employer establishes (after a proper investigation and process) that an employee has misused sick leave (to play Pokémon Go or for any other reason) then the employer may be justified in issuing a warning, or even terminating employment.
Pokémon is of course, just the latest example of a game craze to hit the masses. Fads come and go (when was the last time you saw someone planking, or dancing the Macarena, Harlem Shake or Gangnam Style?). Employment issues, however, tend to remain much the same; perhaps with a slightly different spin. Messing around on company time, using the employer's stuff for your own benefit, and taking sickies are issues as old as employment law itself.