The peril of playtesting: lawyer Daniela Korn on how developing badult games could cost you dear

Lovely to tie in, Daniela! We’re going to discuss two legal things today: first – specific to toys and games – a hidden peril of playtesting! Then we’ll talk about staff handbooks for growing companies because I think those two things overlap… For those that don’t know you, though, who are you and what do you do?
I’m Daniela Korn and I’m head of employment at Tan Ward. So I’m an employment lawyer advising senior executives and company organizations alike on all their employment-law needs. Not only contracts and handbooks, but also the day-to-day advisory work when you’re dealing with companies and employees.

Perfect. So! What I wanted to chat to you about in the first instance is what I’ve come to realise recently are the hidden perils of playtesting… And this came about because I recently had to playtest a boardgame – one that had what I’d call a ‘badult’ tone.
A naughtier tone, then? Like Cards against Humanity, say?

Right. And I’m never maaaaaaaaaad about deliberately provocative content, but if it’s got to be done… Fine. However, in this scenario – and it’s happened a few times – I was playtesting a new game with some of my client’s team. They’re female, near strangers – and easily half my age. Which meant that when certain questions came up, I was a bit uncomfortable answering the way I might if I were with my contemporaries.
Oh! Yes, I can see how that might be awkward…

Right? And I think I felt awkward for them as well. Anyway, it occurred to me that – legally – this might be a problem that game companies don’t realise they have. So my question is: does an employee – in that situation – have a case if they say, “You put me in a room with a strange guy: we had to play that obscene game – I felt really uncomfortable!”
Well, you may not like this answer – but yes, absolutely they could have a case. Because employers have an obligation to ensure they provide a safe work environment – and certainly not one that’s hostile, or one that can feel harassing. And that’s always a subjective perspective… So how does the individual feel?

My recommendation in that scenario would be to understand that a game company has to do its playtesting and market research. That’s a legitimate business aim… But it’s important that they’re very transparent before that test so that individuals putting themselves forward for that sort of conversation are aware – and provide their consent.

They have to be told – broadly – what they’re being asked to do?
Yes. If they were just coming to test a game and they had no idea of its tone, and were suddenly faced with some really uncomfortable sexual questions, say, in an environment where they felt unsafe and uncomfortable, that’s absolutely grievance territory.

Oh, gracious me! You see, we’ve gone from nought to 60 there in the blink of an eye. It’s grievance territory! And obviously when you say grievance, that has a specific connotation…
Absolutely. In employment law, a grievance is an HR process. It’s an opportunity for an employee to submit a formal, written complaint to their employer; to say, in effect: “This is how I felt when you put me in this scenario. These are my concerns, and this is what I want you to do about it.” And the employer then has an opportunity to resolve the employee’s concerns and avoid the employee potentially taking it outside of the workplace realm and using the tribunal system.

That’s it. An employee says “grievance”, and you’re already on the edge of a steep and slippery slope. But all you did was playtest a silly little game! And what defence is there, Daniela, if companies who are playtesting games say, “Well, look: you knew we were playtesting that game. You must’ve known the tone of it!” Is that a defence?
Well, the ultimate defence would be, “We told you about the content BEFORE that test. You were aware – before you agreed to do the playtest, to be part of that process – that there was going to be content of an adult nature, and you consented.” That’s the defence I’d like anybody I was advising to have in that scenario.

Forewarn them…
Forewarn them. It’s important there’s transparency. I think the problem would arise more if you’ve recruited somebody to playtest something and they have no idea that it’s badult content. If they’re faced with that suddenly, then they can say – perhaps legitimately, perhaps not – that they’re in an environment where they feel incredibly uncomfortable and unsafe at work.

That’s why it’s so intriguing to me… People could have a case if they just say they’re offended – and there’s some plausibility to it.
Yes. I mean… They do have to explain what’s offended them, of course. They have to go through the background and so on. So it’s not that the law just says, “Well, that’s it. You’ve got a case.” It’s just that, when they do have a grievance, it becomes a problem for the employer because they’ll have to work through a resolution process. And if they don’t reach a satisfactory resolution with the employee, suddenly you’ve got an employee who’s incredibly unhappy. And that’s terrible for an employer – even outside of the legalities. You’ve got an employee who doesn’t trust their employer. They may well have a very strong case. “I feel unsafe at work and De – the guy in the test was harassing…”

Did you go to say Deej, then? Deej was harassing?!
I did! I’m so sorry!

Well, I didn’t come here to be insulted! Honestly, I can get this abuse from Billy…
I’m so sorry! Ha! But that’s the issue… If you’re an organization that’s committed to investing in employees, that’s a nightmare scenario for you outside of the legalities.

And, to foreshadow where we’re going next then, am I right in saying that details of how a company’s grievance procedure would go should be in a staff handbook?
Yes. A staff handbook would be exactly where the grievance procedure is set out. Before we go on, though, I should say that – even in a scenario where there is no handbook – the employer and the employee can follow ACAS guidance on disciplinary and grievances. Which is fine – it’s permissible. And that’s what a tribunal would look at to assess it. But as an employer, it’s nice to have a handbook because then you can be very descriptive as to how you expect the process to unfold… What information you expect the employee to provide and so on.

Also, one thing I always like to see in the handbook and the grievance policy is the employee setting out what resolution they want. Because it’s all very well and good an employee venting and complaining about what they feel is bad treatment. But if they can’t tell the employer what resolution they’re seeking, it becomes even more difficult to work through the process to reach a good outcome.

You’re absolutely right. Even outside this specific context, I think it’s almost negotiation 101, and complaint 101: “I’m unhappy with this.” “Sorry to hear that. What would make you happy?” You’ve got to have something to aim for! Otherwise, it’s half a complaint.
Exactly right. But employers need their grievance policies to make clear that the employee needs to set out, in writing, what resolution they’re seeking. That’s not something that would’ve been derived from the ACAS guidance, although I think it makes reference to it. But if your policy says that – in order to submit a grievance, there are ten things that we need to see in it, and one of them is resolution – well, that’s really compelling. It makes that process that little bit more effective.

Mmmmmmgggh. Sorry! I was just processing that and let out a low growl! I’m not sure what you made of that! It certainly wasn’t harassing! So… In terms of belt and braces, then, might it be wise – at the top end of a playtest – to also give a little disclaimer?
A disclaimer about the playtest itself?

Right. So that freelancers, employers and employees in the session are all on the same page: “Thanks for coming everyone. As you know, today we’re playtesting our new badult game” – erm – I can’t think of an offensive name off the top of my head! “Who Wanked What?” Ha! “That’s what we’re here to do. And, as you can imagine, the content, at times, explores issues that may be upsetting or offensive. If you’re not comfortable with some of the content, just say so. That’s part of the playtest.” Does that also make sense?
Absolutely! You can absolutely frontend it that way: just say, “Look, this is what we’re doing, this is what we might have to talk about. If you’re not comfortable, please let me know. We can pass over the question.”

Great. And to some extent, I think it’s important to remember that the interest here is the playtest of the game. The position is not to actually interrogate anyone! So, for example, it occurs to me that if you’re playtesting, you don’t have to answer truthfully… If I ask you to tell an embarrassing story, I can make it quite clear in my disclaimer that you’re welcome to make one up! There shouldn’t necessarily be an onus on you to reveal more of who you are than you’re comfortable with. We’re making a silly little card game; we’re not starting a religion.
Yes, I think that makes sense. You’re making it clear that the game has an adult or an uncomfortable tone, but that no one need feel uncomfortable testing it.

Brilliant. Coming back to the idea of a staff handbook then, Daniela – for toy and game people that are in growing companies – what is a staff handbook? And why should they have one?
There comes a time when growing businesses need to get certain procedures and policies in place. Essentially, a staff handbook is your extended terms and conditions of engagement with your employees. So it’s a way of just setting out how your company operates… It lets you inject the culture of the company into an organization. It’s also a way for you to set out guidelines as to how you expect an employee to behave, and how the company will respond in circumstances where perhaps things don’t go according to plan – as we just discussed with grievance and resolution.

And grievance and resolution aside, can you give me an example of that? Because I know some people will be thinking, ‘What business is it of yours to tell me how to behave?’
That’s a really good question. There are lots of different policies that you can put into a handbook, but – for me – two of the most important relate to your email and internet policy. What can and can’t your employees do on your computer networks? And actually, for most organizations, that’s really important – it’s a key area to protect. There are also things like your equal-opportunities policy. So as an organization, how do you expect your employees to behave, both in terms of your clients and your other employees?

What behaviour’s going to be tolerated and what’s not?
Exactly. Now, some of that is enshrined in law, but your ordinary individual won’t necessarily have full access to – or visibility and understanding of – those legal requirements. So a handbook is a way of presenting those legal requirements in a very nice, digestible, easy to utilise document.

So presumably then, when that staff handbook is ready, an employer would email a copy to their employees… And have a copy available offline as well, so that everyone clearly has access to it in real life?
Access is the key word there, yes. It’s really important that employees can access the handbook. And yes, of course, an email might be a neat way of doing it. But lots of clients will have an intranet online. They can simply post the handbook to that, then inform employees where they can access it. Doing it that way means the handbook can be updated as and when it needs to be without having to reissue it.

That makes absolute sense. And there’s one thing I’ll double back on here because you mentioned the grave importance of the internet policy… I’m quite surprised you named that straight out of the gate. What kind of things might you be saying there? That there are certain kinds of content you don’t expect me to look at online in the office?
Yes – and in fact, I always recommend that employers have specific restrictions as to what employees can and can’t do on your internet systems. Looking at unsavoury content online, or even on their own devices in the workplace…

Tractors in the House of Commons…
Yes, many found that unsavoury! Ha! You would have to set the tone in terms of not allowing access to pornography, or to send information which is going to be harassing to your colleagues or to clients. And also, within that policy, using wording to say that you, as an employer, are entitled to monitor email and internet use. That’s really important! Because in an event where you think there’s been misconduct, you want to have the ability to access what the employee has done.

And without letting employees know – in advance – that you have the right to do that, it gets tricky from a legal perspective?
That’s right!

So we should clarify that if I were your employer, and you had a company email address, then I can access your emails… Even if you’re sending the emails externally, on your own device? I have the right to see that material because you’re using my address?
Yes. Anything that I’ve said in my emails, you’d have a right to look at. But you’d have to communicate that to me in advance of looking… It’s much, much harder for an employer to do that lawfully if it’s not communicated in the staff handbook first.

Oy. Which goes back to my feeling that the day your first employee starts is the day you need a staff handbook in place! But am I wrong? At what point, Daniela, do you think it becomes necessary?
That’s a really good question. In some jurisdictions, there’ll be a statutory threshold… Once you have X number of employees, you’ve got to have written policies. But we don’t have that in the UK. Here, it’s just a question of risk and degree. Of course, there’s potential for things to go wrong with just one employee so it’s great to have it all set out on day one. But I also recognise it’s an investment for a company to make. So the balance might not tip until they have a few employees.

Where would you put that balance, roughly?
I would certainly say that once you’re in the territory of 10 plus, you need to really start thinking about it. And look, the handbook is not the only place where you are setting out terms and conditions. The employment contract has a role to play too. So for organisations that are just starting up, or that don’t yet have a massive employee base, there’s a way that you can broaden your employment contract to include information around equal opportunities, around email and internet policy. That way you’re not having to prepare a whole secondary document until you have sufficient numbers to justify the expense.

Great answer. Your own rule of thumb is 10 plus, though…
Right. And as you know, Deej, with any kind of contract or handbook – even though you invest time and energy into preparing these documents – the hope is that that you’ll then put them away and never need to look at them! Right? Because you want the relationship to be really smooth, and you hope that nothing ever goes wrong.

Well, that is the – as you say – hope! But to paraphrase that which is often said of contracts: “You don’t need a staff handbook until you NEED a staff handbook.”
Exactly. You just never know. People often pay their lawyers to be that cynical voice that says, “If things do go wrong, these are the protections that you need.”

Brilliant. So to wrap this up, is there anything else you think is worth adding to this conversation?
I just think it’s important that there’s always a mutuality of respect in an employment relationship. I know that almost sounds as if it doesn’t need to be said…

Oh, I don’t know… I think not only does it need to be said, I think it needs to be understood! A mutuality of respect?! Is that a legal phrase or just a gorgeous way of talking?
Ha! That’s just my way of saying it… But we encounter different people from different walks of life with different backgrounds. They’ll have different views and perspectives on the world. So it’s important that you don’t just assume that because something is more or less offensive to you that it is similarly offensive or not offensive to somebody else. And I’m not saying that means you have to tread on eggshells…

No?
No. But I think if you’re walking into a scenario which could be a bit spiky, just give people a get out. Because you know, you might think something is really innocent, but it might trigger a nerve in somebody else that sort of starts to unravel your relationship in terms of the trust and confidence that employees and employers should have with one another.

Excellent.
I just think if you have the focus always being on acting the way that’s respectful, I think half the time you can avoid triggering these ER issues, these employment related issues in the first place.

Alright, great stuff. So now, final question: if any of our readers are looking to get in touch with a lawyer of your charm and caliber, how do they do it? Where do they go?
So they can find me or my colleagues on the Tan Ward website – www – do I have to say that these days?! www.tanward.co.uk!

In a way, Daniela, I’ve come to feel we never had to say it… You know, W is the only letter in the English alphabet that has more than one syllable? It’s got three! So every time we ever used the abbreviation www…
…it was three times longer than saying worldwide web!

It was! That’s time we’ll never get back. Think on that!
I will. That’s going to haunt me! I think we’ll just say tanward.co.uk

Sold. Fantastic! Thank you, what a joy to chat.

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