Employee T&Cs (Part 1 – Working Hours)

I agreed some time back to write a post for IndieVision, on the Employee Terms and Conditions we use.  Actually, although they will hopefully be useful to my peers in the indie game developer community, originally I made them publicly accessible as a service to other employees within the games industry. There is always discussion on IP clauses in employment contracts, overtime, and I wanted to show that there were sensible, fair contracts that both preserved the needs of the business but were still amenable to the individual employees themselves. I had hoped that it could be taken by employees, so that any attempt by unscrupulous employers to say “these are standard clauses, and you won’t find a games job anywhere that doesn’t have them” could be rebutted.

Our T&Cs have been ratified by our employment law consultants as being compatible with all current UK legislation, but they did not write more than a few sentences of it. The majority of the interesting clauses are very games industry specific, and on that they could provide no advice, other than to say that the clauses that were there did not affect the contract’s enforceability on unreasonable terms.

There are basically two thorny issues when it comes to employee terms: working hours, and IP ownership, each complex enough to warrant their own posts. There are also some basic company issues, which I’ll cover in a final post.

Working Hours

[Clauses 2.1 through 2.4]

For working hours, there are two main issues: 1) flexi-time/working-hours and 2) overtime. We state that our working week is 35 hours, Monday to Friday. Our office hours are 9 to 5, although in practice I don’t hold our team to that. Flexi-time is a good arrangement, but I believe it should be agreed amongst the team rather than trying to lock it down in the T&Cs. What is important is that teams know what hours they are expected to work, in any given week.

It’s not uncommon for companies to want to specify potentially unlimited working hours, for obvious reasons. The terminology to note, which we also use, is: “the demands of the business necessitate a flexible approach. This may require the Employee to work overtime and/or unsociable hours as required by the Employer”. Obviously this opens the door to massive abuses of the employees. The fact is, this is to cover the employer for when the s&*^ hits the fan. The critical milestone or gold master build absolutely has to ship on Sunday night, and all the stops must be pulled to get it done, or else the consequences for the business are dire. As much as we’d all like to get rid of it, in our industry we play fast and loose, and end up too close to the wire. What this requirement is not, and should never be, is a licence for the employer to have the employee working massive numbers of hours, week after week.

In the UK, the EU’s working time directive should kick in to prevent this, by insisting that no matter what, an employee can’t work more than 48 hours a week. In practice this is averaged over the last 17 weeks, making it somewhat tricky to find out just how many hours an employee is allowed to work next week. In the past there has been an opt-out, which employers have encouraged employees to sign, on the grounds that when they do need those last minute crunches, they don’t want to get caught out because employees have already worked too close to the limit. It’s important to note that a) you don’t have to sign the opt-out at all, b) any attempt or coercion by the employer that implies that you won’t get the job if you don’t sign it is thoroughly illegal, and c) even if you have signed it, you can retract that and opt back in at any point, by giving your employer a weeks notice. It’s all explained very thoroughly here.

I believe quite firmly that the opt-out shouldn’t even be considered. It certainly shouldn’t be mentioned in the T&Cs. I understand that it’s being removed anyway, and UK businesses will have to comply like everyone else. The plain fact is that employees shouldn’t be working anywhere near to the 48 hour limit, so there shouldn’t be any issue for the employer.

So back to our T&Cs – there is a note stating that we may need the employees to work over and above the normal week, but only in an exceptional case, and in those exceptional cases, the limits and consequences are clearly laid out. There is no room for abuse of the employee if the T&Cs are set out well. Exactly how the business chooses to deal with the situation is different for everyone, but it needs to be crystal clear a) exactly what the normal working week should entail, and b) what the employer and employee can expect if they need to work above normal hours.

We are a small business, and can’t afford to pay overtime to get things done. Instead, we operate a time in-lieu policy.

2.3 In the case of overtime, the time spent over and above normal working hours in any given week will entitle the Employee to time off in lieu of work to be done in future weeks. All overtime is at the discretion of the Employer, and must be agreed in advance. No more than 20 hours may be accumulated in any one month, and the time off must be taken in the following month. No entitlement can be carried forward without prior agreement. Any entitlement not taken will be lost.

In practice this gives us a lot of flexibility. If we need to work an 70 hour week one week, it needs to be balanced by not working at all the next week. If we were to work even 5 hours a week over the limit, by the end of the month 20 hours would have built up, and the employee may take them off, or agree to save them up for later. The key point here is that it allows the business to temporarily ramp up when we need to, while limiting the length of time we can do that for, and giving employees the choice as to how they want to handle it. If we need longer term crunch, we have to ask the employees (nicely), to accept the longer working hours. Conversely, the employee cannot simply accumulate a mass of time off in-lieu without the business agreeing to it.

At no point should the employee be working additional hours without an explicit agreement on how they should be compensated for it. Any vagueness in the contract can only lead to dilution of an employee’s recompense. Any promises of bonuses at a later date to offset overtime done now are just theoretical; and employees will often find that the bonus divided by the hours of overtime actually mean they are being paid below the statutory minimum wage for that time.

That’s a long enough post for now, next time around we will cover Intellectual Property.

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Last modified: February 06 2020.