Rise of the unions
Telltale Games Studio’s sudden collapse and the resultant furore over layoffs in California, the last Games Developers Conference 2018 roundtable "Union Now?"," and movements such as "Games Workers Unite!" (whose London chapter recently received union recognition and whose members have participated in the Independent Workers’ Union of Great Britain (IWGB) strikes), indicate that change is afoot in the games industry.
The UK has a relatively unique and rapidly changing working environment, with new forms of working shaking up how traditional employment law views certain industries. Given the way in which the games industry is structured, games businesses need to be mindful of shifting regulatory and cultural norms and how that will affect them.
For example, games businesses need to be aware of, and regularly review their workers’ employment status in the UK, and consider a range of compliance issues from working time, holiday entitlement, overtime and pay rates, as these are all areas which will be subject to changes largely driven by union involvement.
There is a growing movement to unionise the games industry and achieve clarity on individuals’ employment status, enforcing existing employment rights, lobbying for change and seeking workplace recognition.
Game Workers Unite!
The recent movement to unionise the gaming workforce is led by an organisation called Game Workers Unite! (GWU). GWU is a young, dynamic and global organisation whose "number one goal is building the foundations for mass game industry unionisation, starting from the bottom up". It is the only organisation currently trying to do this within the games industry on such a wide scale.
Its vision is distinct from other industry groups such as the IGDA, ESA and GDAA who lobby for change and represent games business owners, rather than workers. GWU has an active social media presence and its marketing is aimed at attracting workers to engage with their rights. GWU has assisted in helping with the formation of unions across the globe, and has been successful in gaining union status in countries such as France and the UK. GWU’s aims include:
- Informing workers of their rights.
- Ending the institutionalised practice of excessive/unpaid overtime ('crunch').
- Improving diversity and inclusion at all levels.
- Supporting those who are abused, harassed, or need representation.
- Securing a steady and fair wage for all.
In the UK, GWU has partnered with the Independent Workers Union of Great Britain (IWGB), a larger union formed to campaign for the rights of individuals within the so-called gig economy.
IWGB has been successful in advocating for more rights for gig workers such as Uber drivers, representing its members in court cases against Deliveroo, the University of London, Uber and CitySprint, among others. If those working in the gig economy are held to be workers, labour costs will considerably increase for employers.
With GWU’s involvement, there may be an increased number of employment tribunal claims looking to enforce employees’ rights. Not only will this raise employment costs but it could also become significant for buyers and sellers of games businesses given the potential liability around issues such as wrongly classified workers and holiday pay not being calculated correctly.
Furthermore, the political pressure exerted by unions in the UK may well be the catalyst for the implementation of the Taylor Review employment reforms, which include bolstering HMRC’s enforcement powers by, for example, the establishment of a labour market enforcement agency with wider powers to fine and chase businesses on any non-compliant employment practices.
What does GWU want?
Establishing employment status:
In the UK, the first question when reviewing the employment rights of your workforce is what category of worker they fall into under UK law. Individuals working in the UK may be categorised as self-employed, workers, or employees.
Worker is a wider term than employee and includes individuals who, although not employees, perform work personally for a business other than as a client or customer of that business.
The growth of the gig economy has seen a number of high profile cases about how to categorise people working outside traditional work patterns, including those involving Pimlico Plumbers, Uber and Deliveroo. The main three employment categories (overview only) in UK law are:
Employee
How to identify and questions to consider:
- Someone who works under a contract of employment (whether written or oral).
- Someone who personally fulfils the terms of the contract (they cannot send anyone else to do their work).
- The employer has a high degree of control over what the employee does and provides the tools needed for the employee to do their job.
- Both employer and employee have certain obligations to each other.
Key rights attached:
- Written statement of employment.
- Itemised pay slip (this is due to be extended to workers from April 2019).
- National minimum wage.
- Paid annual leave, sick pay, maternity and paternity pay.
- Right to request flexible working hours.
- Right not to be discriminated against.
- Right not to be unfairly dismissed and minimum notice periods where applicable.
- Right to receive statutory redundancy payment.
- Time off for emergencies.
- Protection if their employer’s business is sold (under TUPE Regulations).
- Paid annual leave.
- Statutory minimum length of rest breaks.
- Right not to be treated less favourably if fixed-term contract or working part-time.
Worker
How to identify and questions to consider:
- Do they work to the terms of a contract (express or implied)?
- Do they carry out the work personally rather than viewing you as a client or customer and operating as their own company?
- Consider the degree of control exercised over the individual (including supervision and management) – the greater the control, the more likely you are dealing with a worker (or employee).
- Includes casual workers, agency workers, freelance workers, seasonal workers and zero hours workers.
- Rights for workers are automatically rights for employees.
Key rights attached:
- National minimum wage; u paid annual leave; u statutory minimum length of rest breaks; u right not to be discriminated against; and u right not to be treated less favourably if working part-time; but u not entitled to statutory redundancy pay, minimum notice periods, protection against unfair dismissal, right to request flexible working and time off for emergencies.
Self-employed (contractor)
How to identify and questions to consider:
- Runs their own business and likely to be contracted to provide a service that may be supplied via a contract for services/consultancy agreement.
- Put in bids or give quotes to get work.
- Not paid through PAYE and are responsible for their National Insurance and tax.
Key rights attached:
- Health and safety rights.
- Extra rights and responsibilities set out in the terms of contract with their client.
- No right to holiday pay.
- In some cases protected against discrimination.
Understanding the differences between employment categories is critical when analysing the changing UK worker environment as many gig economy workers fall into a grey area between self-employed and worker, or sometimes worker and employee, which tends to lead to controversy while legal categorisation catches up with the reality of disruptive working practices.
Enforcing existing employee rights
The UK’s employment regulation landscape offers a large amount of protection to employees in the workplace which, despite initial fears around the effect of Brexit on these protections, only appears to be getting stronger. GWU aims to offer support and information to employees in the gaming industry about their employment rights.
This could be:
- Indirectly through resources and literature relating to a number of issues such as harassment and discrimination in the workplace.
- Directly by accompanying employees (even those who aren’t a member of GWU or any union) to certain internal meetings; for example, all employees in the UK are entitled to be accompanied by a union official to a grievance or disciplinary meeting and some redundancy consultation meetings.
- Directly through offering invaluable backing to employee claims; as with the employment status cases mentioned above, unions often offer financial and legal backing to employees to allow them to bring a claim that they would not otherwise have been able to (for example, Asda is currently facing a very large equal pay claims from its employees which is supported by the GMB union).
Lobbying
With the media spotlight that has been placed on employment rights in recent years, and topics such as the gig economy, equal pay and sexual harassment in the workplace (through the #MeToo movement) being front page news, one of the most effective tools that unions possess is acting as a mouthpiece of those they seek to represent.
By publicly lobbying on the issues that it sees as important, such as diversity and inclusion, GWU can pose a reputational risk to employers in the games industry if they may be perceived as being a "bad" employer, even if it is not strictly true from a legal perspective.
Recognition
The ultimate prize for GWU in the workplace (although not one of their current stated aims) would be to be formally recognised by some employers in the industry as representing some or all of their employees in certain matters. If this is achieved, those employers will then need to consult with the GWU on all proposed changes in those matters.
For example, if a studio recognised the GWU as acting for all of its developers in respect of pay, hours and holiday, that employer would need to negotiate directly with the union for issues such as pay rises, overtime rates etc.
To achieve this, GWU will either need to persuade an employer to recognise them voluntarily or make an application for statutory recognition and argue their case in front of the Central Arbitration Committee.
Although unions have got to meet certain thresholds relating to union membership levels and support, the process is traditionally seen as weighted in favour of recognition and can be a long and expensive process for employers faced with it.
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