Sian McKinley and Joshua Peters: The impact of the metaverse on employment law

Sian McKinley and Joshua PetersEmployment laws on harassment, discrimination and privacy of workers are well established online and in the office, but applying these rules in the metaverse raises novel risks and challenges. In the employment sphere, an evolution of existing legal principles is more likely than a complete overhaul.

The nascent metaverse has already been plagued by allegations of e-groping and other inappropriate conduct. In any virtual context, this behaviour is clearly unpleasant and poses problems for employers seeking to utilise digital spaces. Employers should consider whether harassment of a worker’s online avatar could amount to actionable harassment in the real world, for which it could be liable.

To suffer a detriment under the Equality Act 2010, it is enough for someone to have a reasonable sense of grievance about treatment received, which can include direct discrimination because the victim is merely perceived to have a protected characteristic. The victim does not need to actually have the characteristic, nor does the perpetrator need to believe that they do.

Employment tribunals are unlikely to be sympathetic to arguments that metaverse issues are only confined to digital spaces and experienced by avatars. Indeed, under the act it is the effect, and not the means of delivery, that is often most important. Clearly the use of avatars in the online workplace potentially widens scope for discrimination by perception to occur.

Expectations about respect between employees should remain the same, whether new interfaces or old are used, with existing policies governing conduct applying to interactions in any virtual workspaces, albeit with any necessary amendments. The need for implementation and training on such policies should remain largely the same.

There is also a question as to whether requiring employees to use the metaverse for work would itself cause a disadvantage for those who might find it more difficult to engage in a digital workspace. Employers should require their service providers to consider reasonable adjustments that might need to be made for disabled employees. Progress in the world of videogame development illustrates ways in which this is possible in terms of hardware and software.

In the current iteration of the metaverse, some users have also reported migraines and nausea from prolonged headset use. Employers may need to consider and tailor the benefits offered to employees, such as access to workplace medical assessments.

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Employers must also consider the impact on their obligations as data controllers in this digital universe, where headsets inherently lead to continuous surveillance of employees, in addition to the collection and processing of biometric data which may be highly sought after by advertisers.

Sian McKinley and Joshua Peters are associates at Herbert Smith Freehills