Taylor Wessing

Game workers unite! Unionisation in the gaming industry

Question

Why is the unionisation of the gaming workforce in the UK so important to businesses?

Answer

The unionisation of the gaming workforce in the UK is led by a recently established organisation called Game Workers Unite! (GWU). This article argues that the GWU's new union status is an important consideration for businesses in different sectors around the UK, as it shows that awareness of issues surrounding the gig economy is spreading to new industries and that a review of employment is essential for businesses, especially where they hire flexible workers.

Game Workers Unite!

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 International Game Developers Association, the Entertainment Software Association and the Game Developers Association of Australia, which 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 (known in the industry as 'crunch');
  • improving diversity and inclusion at all levels;
  • supporting those who are abused, harassed or need representation; and
  • 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, it could also become significant for buyers and sellers of games businesses given the potential liability around issues such as wrongly classified workers and incorrectly calculated holiday pay. 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: 

 

Employment category

How to identify and questions to consider

Key rights attached

Employee

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.

 

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).

Statutory minimum length of rest breaks.

Right not to be treated less favourably if on a fixed-term contract or working part time.

Worker

Ask: do they work to the terms of a contract (express or implied)?

Ask: 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.

 

National minimum wage.

Paid annual leave.

Statutory minimum length of rest breaks.

Right not to be discriminated against.

Right not to be treated less favourably if working part time.

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)

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.

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 to UK businesses 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 and individual dissatisfaction 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 issues such as harassment and discrimination in the workplace;
  • directly by accompanying employees (even those that 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; or
  • 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 claim from its employees which is supported by the GMB union.

The impact of unions being established in new industries can therefore be potentially far-reaching and they provide an important voice for key issues in the workplace.

Lobbying

Building on the enforcing of existing rights, and with the media spotlight that has been placed on employment rights in recent years, with 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 gaming industry if they may be perceived as being a 'bad' employer, even if it is not strictly true from a legal perspective. Again, this should cause businesses in sectors where unions have not traditionally operated to think more carefully about their reputations and support of union-backed issues.

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 an employer 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 and so on.

To achieve this, GWU will either need to persuade an employer to recognise it voluntarily or make an application for statutory recognition and argue its 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.

In conclusion, GWU is an important symbol of changing employment practices and awareness in the UK. Businesses need to be aware of employment rights and the possibility of union establishment, even in industries that may seem unlikely candidates for unionisation.

Rachel Wiltshire is a trainee solicitor at Taylor Wessing.

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