Pok??mon Go or stop?

Written by
Christopher Lynn

30 Aug 2016

30 Aug 2016 • by Christopher Lynn

With so many players spending lunch hours and more of their working day slipping off to parks to catch themselves another Pidgey, what can employers do? 

Gotta catch them all!

If an employee is consistently taking more than his/her allotted time for lunch or breaks in order to play Pokémon, there are clear grounds for disciplinary action. The playing of Pokémon would not be a mitigating factor – it is not a reasonable excuse for poor time-keeping. You would treat an employee who was consistently late back for any other reason in the same way, save for reasons arising from protected characteristics, of course. It would, though, take a very creative individual to argue their playing of Pokémon arises from, or is due to, a protected characteristic! 

On the other hand, if an employee is simply using his/her contractually allotted lunch or break times to play the game and no more than that time, disciplinary action would likely not be justified. Such breaks are the employee’s own time. Would you discipline an employee who often goes to the gym during the allotted lunch hour but ensures he/she is not late returning? Probably not, and so your Pokémon trainers should be treated similarly. After all, they’re getting exercise too, of a sort.

Fun and games

It should be noted that there is nothing special about Pokémon. If an employer can show that an employee’s work is being impinged upon by the game, there may be the same grounds for disciplinary action or performance management as for any other such distraction. The employer would need to investigate the performance issues or misconduct and have clear evidence that Pokémon is the cause. If you then decide to apply disciplinary procedures, the employee must be allowed the opportunity to give his/her side of the story and the usual opportunity to be accompanied by a colleague or union official.

An employer may well also be able to discipline someone who is clearly using their phone excessively during working time for non-work matters – for example, the employee who spends 20 minutes making a cup of tea which is actually 19 minutes of training Pokémon. Again, the employer would need to have clear evidence (employees will not necessarily make this as obvious as the 20-minute tea example) and cannot assume that what looks like excessive phone use is actually caused by hunting for little virtual monsters. 

Before you get the forensics squad on the case, you do not have the right to seize the employee’s personal phone to check what he/she has been doing on it, but if you ask and it is refused, this may be persuasive when seen in addition to any other evidence of the time-wasting which you may have. Alternatively, if it cannot be clearly linked, following the usual disciplinary process will again allow the employee to put forward their explanation. An employer can then take a view as to whether excessive phone use has been justifiably explained.

However, Pokémon has not been limited to personal phones – there have been cases of people playing the game on their (often newer/superior) work phones. Like any good employment lawyer, I raised this with one (non-lawyer) friend who simply said that he gets unlimited data on that phone, so why not? If this is the case, he has probably stumbled onto a good point – what is the issue to the employer if Pokémon is played on the work phone, but it is not costing the employer anything extra? Simply having the game on a work phone is unlikely to justify disciplinary action in itself. Unless and until the storage capacity or data requirements of “proper” work are prejudiced by it (e.g. data usage is limited and Pokémon has used enough that work emails cannot come through), all the points above will apply. However, at least with a work phone, employers have greater justification in requiring it to be handed over for evidence. Although, investigating managers should take note – wanting to “have a go” is probably not justification enough!!