A government official was recently interrupted after a journalist attempted to catch a Pokémon during his briefing to the press. Whilst employees are attempting to ‘Catch ‘Em All’, it is inevitable that this latest craze may cause a few headaches for employers and their human resources departments.
For those of you who do not know what Pokémon Go is – I confess that I had to have a demonstration by a colleague – it is an app that allows its users to undertake a virtual hunt using their smart phones to find Pokémon characters. The fun part is that players are required to navigate through the real world to find the characters.
The game has a lot of avid fans and is known to have an addictive element. This has already led to viral images being spread of bosses losing their patience with their employees. In contrast, other employers such as Boris Veldhuijzen Van Zanten of TNW, have made it a requirement for employees to play at least 30 minutes of the game a day.
This does beg the question, how should employers respond to Pokémon Go and how should they deal with employees who are playing the game during their working hours? We asked our employment solicitors and digital media lawyers to find out.
If you are an employer with employees popping to the shop every five minutes or so, then you may have a sneaking suspicion that they are opportunistically leaving the office to catch a nearby Pokémon. The first step should be for an employer to make its position clear. An employer should explain to its employees that they are expected to commit their full working time to performing work-related duties and personal activities should be completed outside of working hours. An email to all the staff should suffice.
In the event that a particular employee is giving you cause for concern, the first step should be to have an informal conversation with this employee. Again, the employer should make the business’s position clear. You can give a warning that if this behaviour continues, then you will invoke the business’s disciplinary procedure.
If an employee does not heed to this warning and continues to play the game, then an employer should look to utilise its disciplinary procedure.
How an employer will choose to deal with the employee will depend on numerous factors. For example, what is the employee’s role in the business? Does the employee benefit from unfair dismissal protection? Is this part of a number of instances of misconduct / management issues?
If a management instruction has been given and unreasonably ignored or disobeyed, then an employee’s actions may potentially amount to gross misconduct. On most occasions, gross misconduct will constitute a fundamental breach of contract which will enable the employer to dismiss the employee without notice.
It is important when dismissing an employee for gross misconduct, especially when dealing with employees who have acquired protection from unfair dismissal, to ensure that a fair procedure has been followed. This should be in accordance with the company’s disciplinary procedure and as a minimum, should accord with the ACAS code of practice on disciplinary and grievance procedures. Amongst other things, this will involve undertaking an even-handed investigation into the misconduct, informing the employee of the issues in writing, meeting with the employee, informing the employee of the decision in writing and including a right to appeal. Importantly, for a dismissal to be fair, the decision to dismiss must be reasonable in the circumstances.
As a matter of best practice, employers should also ensure that their disciplinary and social media policies are up to date and clearly outline what constitutes unacceptable behaviour. If you need updated HR policies, the Waterfront Employment team can prepare tailored and up to date policies to meet the needs of your business. On the other hand, you may wish to adopt Boris Veldhuijzen Van Zanten’s approach and simply join in with the fun, even if this is during working hours.
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