In our article on employment status we discussed how relations between esports organisations and players are gradually changing due to increases in investment, influence, and the need for player protections. While historically players would have entered into more commercial contracts with each other, as the industry grows, larger organisations act more akin to employers. This trend brings its own set of legal considerations, however, these become more complicated when a large portion of professional players are under the age of 18 (minors). In the previous article of this series we examined the legal challenges at play when minors enter contracts… in this article we kick things up a notch by compounding these contract law conundrums with a little employment law.
Feel free to check out the articles mentioned above at the following links:
Recap on Capacity
While employment contracts have a somewhat unique legal position, it is important to remember that they are still contracts and so the capacity of a minor must be examined at contract law. This is discussed in more detail in the article mentioned above but the general rule is that minors have not yet reached the age of majority and so they are free to determine a contract ‘void’ without penalty. Employment contracts can, however, be an exception to this rule so long as the contract is beneficial, on the whole, to the minor, for example by providing time and resources for training and education in addition to a fair salary. Once the parties are satisfied with the issue of capacity it is time to turn to employment legislation for more specific restrictions.
Definitions
This article refers to an individual who has not reached the age of majority, 18 years of age, as a ‘minor’ but this can be broken down further into:
Child – defined at sections 558 and 579 of the Education Act 1996 (EA 1996) as any person who is not over the compulsory school age, which ceases on the school leaving date for the academic year in which the individual turns 16 (s8 EA 1996)
Young Person – defined at section 579 of the EA 1996 and regulation 2 of the Working Time Regulations 1998 (WTR 1998) as a person over compulsory school age but under the age of 18.
When discussing minors the definition of ‘Employment’ is also expanded from its usual meaning within s230 Employment Rights Act 1996 (ERA 1996) to include minors who assist in a trade or occupation carried on for profit even if they do not receive remuneration (s30(1) The Children and Young Persons Act 1933 (CYPA 1933). This means that even volunteers or those not directly paid by an organisation can be captured by the employment restrictions that apply to minors. This point is of particular importance to new and growing esports organisations who rely on a community of volunteers, as many do, and/or do not pay their associated players or streamers directly.
Fundamental Restrictions
The primary source for most restrictions on the employment of minors is the CYPA 1933:
Age Limit – The general rule is that a Child must be 14 years old before they become employable (s18(1)(a) CYPA 1933). However, this minimum can, and often is, reduced to 13 years old by local authority byelaws, reflecting the minimum working age prior to the introduction of regulation 2(2)(a) of the Children (Protection at Work) Regulations 1998.
Type of Work – Children can only be employed to perform work that is unlikely to be harmful to their safety, health, development, school attendance, or any work experience (s18(1)(aa)). This is considered ‘light work’ under s18(2A). Though playing or streaming would likely be considered light work most of the time, care should be taken to ensure it does not encroach on the Child’s school life and to ensure their mental wellbeing is protected.
Hours of Work – The Working Time Regulations 1998 (WTR) cover hours of work for most workers, including Young Persons who are given enhanced protections under regulation 5A and must not work for more than 8 hours in a day of 40 hours per week. However, it does not apply to children because restrictions are already set out in the CYPA 1933 (Ashby v Addison 2003). A Child:
cannot work before the end of a school day, unless this rule is relaxed by local byelaws, and in any event not before 7am or after 7pm;
cannot work for more than 2 hours on a school day or a Sunday or more than 12 hours in any week during term time;
cannot work for more than 5 hours on a non-school day which is not a Sunday if the Child is under 15 years old and 8 hours if over 15;
cannot work for more than 25 hours per non-school week if under 15 years of age and 35 hours if over 15; and
must be given a 1-hour break after working 4 hours in a day.
If a Child wants to play or stream in their own time, then that is up to them, but organisations should be sure to abide by these restrictions when setting rotas or quotas.
Pay – Children are not entitled to the National Minimum Wage (s1(2)(c) National Minimum Wage Act 1998). However, Young Persons will be entitled to the Young Persons Rate.
Holiday – Children must be given a 2-week break from employment per year. The CYPA 1933 does not provide for any entitlement to holiday pay and, since the WTR does not apply to Children, they do not have a right to paid annual leave under regulation 13 either.
Performances
Different, and additional, restrictions apply to children who engage in performances, as governed by the Children (Performances and Activities) Regulations 2014/2015 and associated Government guidance. Performances include performing in films, plays, public performances, sporting events, live broadcasts, or modelling assignments. Though there is no current case law on the matter, it is highly likely that both streaming private gameplay and competing at larger esports events will constitute performing.
In order for a Child to perform they must have a specific licence which requires them to be appropriately supervised and sets out rules for their health, care, and education. There are supplementary considerations for children who travel abroad for the purpose of performing for a profit so international tournaments will need both immigration and employment law insight.
There are some exceptions to the licencing requirements provided under s37(3) of the Children and Young Persons Act 1963, however, due to the nature of esports, it is unlikely they will apply very often. If the Child only performs up to 4 days in any 6 month period then the first exception could apply, however, it also requires that neither the Child nor the organisers be paid and that the event is not broadcast or recorded. The second exception applies where the performance is arranged by a school which will be useful for schools incorporating esports into their extra-curricular activities but, unfortunately, won’t be of any help to outside organisations.
Additional Restrictions
Byelaws
As alluded to above, local authorities have a power to amend certain restrictions and introduce additional obligations relating to the employment of minors. This power is granted by s18(2) CYPA 1933 and is exercised through the introduction of byelaws. It is common for local authorities to use byelaws to create a permit system which employers will need to apply to and comply with when employing minors. Without such a permit, the organisation may become subject to local authority enforcement and there is a risk that the organisation will not be insured against accidents involving the Child.
Safeguarding
Organisations that employ children must ensure that their safety and security is assured. An esports organisation will need to consider, in particular, whether its employees are engaged in frequent supervision, training, education, guidance, and online communication with the Child. Larger organisations will also need to consider the services and monitoring they provide to minors, such as services monitoring their health and wellbeing. In these situations, among others, the organisation may be engaging in ‘regulated activities’ and "Enhanced" DBS checks may be required under the Safeguarding Vulnerable Groups Act 2006.
School Attendance
While separate from the main restrictions under CYPA 1933, parents will still have an obligation to ensure school attendance as part of their parental responsibility. Neglect here could lead to action against the parents by the local authority. Organisations employing minors have their own obligations on the matter so should cooperate with parents to ensure the best for the minor.
Considerations before employing a minor:
Consider whether the proposed contract of employment would be beneficial to the minor.
Check the Child is over the minimum age threshold set out in statute and local authority byelaws.
Check the proposed type of work and hours of work are compliant with statutory restrictions and any deviations in local authority byelaws. Assess whether the health and wellbeing of the Child would be at risk and whether their employment would detriment their education.
Conduct a formal risk assessment and provide a copy to the Child’s parents.
Check whether local authority byelaws require the employer to have a permit.
Check the business complies with relevant safeguarding obligations (e.g. ensure all necessary DBS checks are up to date).
Check that the employment of children is covered by your Employers’ Liability Insurance.
Where the Child will be performing, ensure they apply for a licence.
Once employment commences, be mindful of the scope of local authority permits and licences, for example record-keeping and reporting obligations.
Adam McGlynn