The COVID-19 pandemic has accelerated the move towards more flexible ways of working around the world. With more employees working from home than ever before, many employers are turning to technology in an attempt to mitigate the down-sides of homeworking – namely the lack of social interaction and loss of company culture. Could a virtual workplace be the answer? International IT and consulting firm, Accenture, has already taken the plunge and introduced its own metaverse, providing its employees with virtual reality (“VR”) headsets for a more immersive experience.

In this thirteenth article in our series, we discuss some of the employment law considerations that employers should have in mind when thinking about setting up their own workplace in the metaverse.

Health and safety

Anyone that has used a VR headset may well be familiar with the symptoms of nausea, dizziness, disorientation and loss of balance that often come when wearing, or after removing, the headset – often referred to as “cybersickness”. As employers will not be physically present to ensure employees have created a safe environment in which to access the metaverse, they will need to find alternative ways to comply with their duty to maintain a safe workplace (which would include any virtual workplace). Employers would be well advised to carry out a virtual risk assessment over a video call and provide employees with training and safety instructions before allowing them access to the workplace metaverse.

Employee wellbeing is another key health and safety consideration. Whilst for many employers the metaverse will just be an added extra to the physical workplace, what will happen in the future if the metaverse in fact replaces the physical office entirely? Even with the best VR headset, it seems unlikely that virtual interactions will give employees the same kind of connection that engaging with colleagues in-person would. Employers need to be mindful of the impact moving to a solely virtual workplace could have on employees’ mental health and should make efforts to prevent feelings of loneliness and disengagement among their workforces. Arranging regular in-person meet-ups could be one option.

Additionally, setting clear expectations and boundaries between work and home life should be encouraged so that employees have time to switch off. This is a hot topic in Europe at the moment; France has already introduced a legal “right to disconnect” and last year the European Parliament called on the Commission to prepare a directive introducing a right for those who work digitally to disconnect outside working hours.

Virtual discrimination, harassment and bullying

The discrimination, harassment and victimisation provisions of the Equality Act 2010 will apply to UK employees accessing a workplace metaverse in the same way as they do the physical workplace.

An interesting question that employers may need to grapple with is; what protection an employee would have under the Equality Act if they created an avatar with a protected characteristic that they themselves do not possess? For example, if an employee created an avatar of a different race to their own and was discriminated against by another employee for a reason directly relating to that race, would they be protected by the discrimination provisions of the Equality Act? The Equality Act prevents direct discrimination by perception meaning that if an individual directly discriminates against another because they perceive them to have a certain protected characteristic, even if they do not have that characteristic they will still benefit from the protection of the Act. Therefore, it is likely that in such a situation the Equality Act protections would apply.

Given the way that avatars can be created, there seems to be scope for employees to develop a degree of anonymity. This risks leading to a lack of accountability and transparency and could in turn give rise to employee relations issues. Requiring employees to use their real names could be one way to increase accountability and reduce the risk of unacceptable behaviour online.

Employee monitoring

With employee monitoring comes important data protection law considerations. Employers need to balance the need to protect employees from unlawful conduct with its data protection obligations to process data proportionately and transparently. Publishing a privacy policy on employee monitoring that specifically addresses what data the employer will process in relation to employee activity in the metaverse and carrying out a data protection impact assessment before collecting employee data in the metaverse will assist employers in complying with these data protection obligations.

For further consideration of data protection issues arising from employee monitoring, our data protection team have written an article about the ICO’s recently published draft guidance on employee monitoring here.

Still have questions? Be sure to read our metaverse articles below:

• Welcome to the metaverse: part one (definitions for a digital world)
• Welcome to the metaverse: part two (the metaverse’s past, present and future)
• NFTs in the metaverse
• Brand protection in the metaverse
• Advertising in the metaverse
• Copyright in the metaverse
• Taxation in the metaverse
• Competition/antitrust in the metaverse
• Jurisdiction and torts in the metaverse
• Reputation in the metaverse
• Online harms and safety in the metaverse
• Data protection in the metaverse