The Legal Expat Desk (LED) is an information hub by GMW advocaten, advising the expat community in the Netherlands since 2006. LED regularly publishes articles covering a wide spectrum of legal topics.

In July there was a headline in Dutch newspaper De Telegraaf that the Pokémon Go hype had led to the dismissal of a 23 year old man from Nijmegen for playing the popular game at the office.

Pokémon Go at work: an example

The employee, actually an agency worker addicted to the popular game, was seen to spend more time on catching rare Pokémons than on his work.

After several warnings, the employer had had enough and requested him to stop working and leave.

The employee could now continue to look for Pokémons with his app at home… or at his lawyers, GMW advocaten.

Not really fired

The Telegraaf article was slightly misleading as, from a legal point of view, the agency worker was not dismissed as stated in the article, but only sent home by the client company.

His employment contract with the employment agency did not actually end as a result of this issue.

However the question of whether searching for Pokémons during working hours can indeed be a reason for dismissal is interesting. We take a look at some important factors.

Workplace rules in the digital age

The law does not have any specific rules on internet and telephone use at work, although it does prescribe that every employee must behave like a "good employee".

Additionally, many employers have rules for internet use, for example in the personnel manual. In these regulations, the employer can restrict internet and mobile telephone usage during working hours.

However, an employer cannot totally ban such usage during working hours. It cannot be demanded from an employee that work is carried out uninterrupted without any moment of relaxation. Even during working hours, there is a right to privacy.

Excessive or inappropriate internet use

On the other hand, it is self-evident that excessive internet use during work is not permitted. The employee is - after all - paid to carry out the agreed work and does not receive a salary to catch Pikachus in virtual reality.

It is not only excessive internet use that can be grounds for dismissal, the nature of the websites visited can also form a reason for terminating an employment contract. Certainly visiting websites (such as site with child pornography) can be sufficient to dismiss an employee.

Additionally, internet use must also not cause damage or be dangerous. A bus driver who tries to catch Pokémons whilst driving will not be able to rely successfully on his right to privacy as an excuse.

Dismissal depends on circumstances

Whether the employee can be dismissed for playing Pokémon Go during working hours therefore always depends on the circumstances of the case.

If the dismissal goes to court, the judge will balance the interests of the employer against the interests and personal circumstances of the employee.

Of course, the extent of the participation in the game and the risk of damage to the employer is relevant. The court will also examine whether strict rules apply within the company (set out the personnel manual) which are consistently observed.

The importance of warnings

Previous warnings are very important in this context. Did the employee actually know that playing the game during working hours is not permitted?

Finally, the court will take account of the employment history, performance and financial position of the employee.

Dealing with distracted workers

If your colleagues or employees are hunting for Pokémons during working hours, and they continue to play despite several warnings, this could well form a reason for dismissal.

The employee, however, should not be sent home until the matter and circumstances have been legally assessed.
 

Facing dismissal for inapropriate internet use or witnessing distracted employees? Get in touch with Laura Zuydgeest, a specialist in labour and property law at GMW advocaten / Legal Expat Desk.

You can find further information, or book an appointment, via:
› GMW advocaten website
› Phone: +31 70 3615048
› Email: [email protected]
› Address: Scheveningseweg 52
2517 KW, The Hague