Is Employment Law Ready for the Metaverse?

The global pandemic has forced companies to completely re-imagine how employers and employees collaborate and interact with each other, and remote technology has now become a critical mainstay of our professional lives. If those changes in recent years represented an evolution, we may now be seeing the start of a revolution. Enter the metaverse.

As the metaverse continues its march towards the working world, we can expect employees to spend more and more time in the virtual world. Many employers will be keen to adopt this technology as a means of bridging geographical spaces between their global workforce, and for employees, the ability to work in an immersive way with their colleagues from the comfort of their own homes, will be hugely appealing.

These prospects are however already throwing up more questions than answers for employment lawyers.

Key to accessing the metaverse is an avatar. As in online gaming, a desire for digital escapism often factors into to how a person chooses to represent themselves in the metaverse and we may see a continuing affinity for avatars whose appearances do not resemble their own. Within professional contexts, choice may be restricted by employers although I suspect this may change over time driven by brands who wish to reflect their consumer-facing brand internally.

There are nonetheless diversity and inclusion challenges which come with any such choice.  Very rarely do you see a gaming character who is visibly pregnant or disabled and there is ongoing debate about whether or not these characters are sufficiently diverse or, in some cases, over sexualised. This is a frontier on which gaming and other developers are currently battling – and this could spill over into the workplace where employees will have heightened expectations around representation.

The natural instinct is usually to design a personal avatar which appears to be an improved version of ourselves and our behaviour in the virtual world – and how “attractive” the avatar is may impact how others interact with them. This ‘proteus effect’ may result in altered behaviours in the metaverse, sexism and oversexualisation may start to rear their heads and result in challenges. There is also significantly more scope for making political (through dress, adopting national flags etc) or other statements through one’s choice of avatar (potentially even designing one which pokes fun at a colleague by emphasising certain features). It is likely that human resources may need to update guidelines around these sorts of issues to avoid the obvious problems they would raise within the metaverse.

UK Equality law recognises a limited number of protected characteristics, some of which are visible, and some of which are not. The question remains, to what extent can you be protected for the characteristics of your avatar – if they are not your own?

Employee misconduct in the metaverse may also become more complex to regulate. Of course, if an employee misbehaves in the metaverse, it will be no defence to say “my avatar did it”.  Many issues will be covered by existing employment laws. For example, harassment under UK laws has never required a physical touch and such conduct against an avatar is likely to be caught.

There are however grey areas here too which may begin to emerge. Should the metaverse introduce non-player characters (NPCs) such as those which exist in online gaming, it isn’t clear whether being rude to an NPC in the virtual workplace will constitute misconduct. Can it be a defence to a claim to assert that “your mouse slipped”, you pressed the wrong button or even deniability by claiming that the actions of the avatar represent a computer glitch? If these avatars are common between professional and personal virtual worlds, or identifiable back to the employer, could we see a rise in disciplinary issues linked to individuals’ actions in the wider metaverse as we’ve seen already for conduct on Facebook or Twitter?

Employment tribunals will have much catching up to do as the metaverse begins to throw up new issues around conduct in the virtual workplace. Whilst there are likely to be tangible benefits to its introduction, there are also gaps in the law which will need to be addressed and employment relationships may need to be redefined. One thing is not in doubt, the metaverse is here to stay.

Tarun Tawakley is an employment partner at law firm Lewis Silkin