25.07.2016

Gotta catch ‘em all? What does Pokémon Go mean for the employment relationship?

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.

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.

Sickies

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.

If you need help with any of these issues (or indeed any other aspect of employment law, whether it’s Pokémon-related or not!) please contact us to discuss.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

Related Articles / Insights & Opinion

Privacy Commissioner to consult on Privacy Rules for Biometric Information
With the increasing use of facial recognition technology (FRT), retinal scans, and voice recognition by an array of different agencies, privacy concerns about its collection and use are set to be form...
24.11.2023 Posted in Business Advice
Fern forest NZ
Bioenergy in New Zealand: Fuels for the Future?
The energy transition from combustion fuels to low carbon alternatives is viewed as critical in the race to cut global CO2 emissions and reach climate targets.  We look at some of the opportunities p...
14.11.2023 Posted in Business Advice & Climate Change & Forestry
Will Wide BW
A well drafted will is a craft
The New Zealand do-it-yourself “DIY” attitude and way of life is not limited to home improvements, but sometimes also extends to wills.  Recently we had a DIY $5.99 fill in the blanks will acros...
07.11.2023 Posted in Private Wealth
rsz large pillars
Health and Safety: The Consequences of Dishonesty
Siddhartha Gautama said that lies are like huge, gaudy vessels, the rafters of which are rotten and worm-eaten, and that those who embark in them are fated to be shipwrecked.  Two remarkable health a...
03.11.2023 Posted in Employment & Health & Safety
Properly sequencing your Construction Adjudications: Henry Construction Projects Ltd v Alu-Fix (UK) Ltd
According to the UK’s Technology and Construction Court (TCC) (in Henry Construction Projects Ltd v Alu-Fix (UK) Ltd [2023] EWHC 2010) valid payment claims must be paid before the underlying merits ...
30.10.2023 Posted in Construction & Disputes
Key change to rules on distribution of surplus assets under the new Incorporated Societies Act 2022
On 5 October 2023, the new Incorporated Societies Act 2022 (2022 Act) came fully into force, replacing the Incorporated Societies Act 1908 (1908 Act). One of the key requirements under the 2022 Act is...
18.10.2023 Posted in Business Advice
Construction Framework Wide BW
Major milestone passed – NZS3910:2023 expected in time to fill Christmas stockings
As the most widely adopted standard form construction contract in NZ, NZS 3910 was more than ready for updated conditions given the changes in the industry since its last review in 2013.  After almos...
09.10.2023 Posted in Construction
SEND AN ENQUIRY
Send us an enquiry

For expert legal advice, please complete the form below or call us on (09) 375 8700.