Cindy, one of your employees in Customer Care, is delighted: she has discovered a Pokémon hidden in one of your company’s warehouses. Great news of course, but Cindy has spent two hours hunting the Pokémon when no work was being done. Do you still have to pay her for these hours?
No you do not. The Belgian Supreme Court is very clear on the matter: salaries should only be paid for work actually carried out. If an employee does not work, the employer is not required to pay his or her salary (apart from a few exceptions).
Although it is not very common, you could therefore consider not paying any salary for the hours that Cindy has been chasing around your warehouses.
A few points should, however, be considered:
- As soon as the employee’s line manager is made aware of the fact that an employee is not working, he or she should bring the employee to order. If not, the employee could argue that their extra-curricular activities were (at least implicitly) tolerated.
- The employee should be informed shortly afterwards that a portion of their salary will not be paid.
- If the employee disputes this, you as employer have to provide evidence that the employee was not actually working.
- If the employee works on a flexible work roster, a check should be made to ensure he or she has not come to the office earlier or stayed on longer to organise the hunt for Pikachu.
Under Dutch law, the employee is, in principle, not eligible for payment if he or she fails to carry out their work due to their own fault. In a nutshell, 'no work, no pay'. It will be difficult for the employee to claim that gaming during working hours is not their own fault. The rule 'no work, no pay' does not apply where the employee is unable to carry out their work due to illness. Case law shows that certain addictions, such as a drug, alcohol or gambling addiction, are regarded as an illness. It is, however, not yet clear whether or not a gaming addiction could also be regarded as an illness. Although it is not very common, you could therefore consider not paying any salary for the hours that Cindy has been chasing around your warehouses, unless Cindy’s behaviour could be regarded as an illness.
As from a date yet to be determined in 2016, the main rule 'no work, no pay' will no longer apply. The new starting point will be that the employer must pay the salary if the employee does not work, unless the employer demonstrates that the employee should reasonably bear the risk of not working. In other words: 'no work, but still pay'. The burden of proof has therefore been reversed, which means that the employer must now prove that the employee bears the risk for non-performance of duties. If the employer cannot do this, the employer must continue paying their salary. The employer could then still claim that catching Pokémons in the warehouse during working hours is a self-inflicted non-performance of duties and consequently no salary is due.