When virtual reality hits Part 3

If you haven't already, please have a quick read through Part One and Part Two of this series, which explored what the concept of the metaverse is, how we will use metaverses, and how to approach the minefield that is data protection risks in the metaverses.

So what risks should we be looking out for?

Metaverses will be prone to all of the issues that exist in the real world, as well as some novel risks.

• Bullying and Harassment: Employers shouldn't underestimate the potential impact of virtual harassment (whether sexual or otherwise), particularly where virtual reality technology means that actions in a metaverse will mimic real life, and will need to update their policies to take these different forms of harassment into account.

Employees and employers may have the option to 'mute' or ban other individuals from their metaverse space. While this has the potential to be an excellent tool for employers in dealing with complaints of harassment or bullying, it creates difficulties where a person's interaction with other colleagues may be an essential part of their role, and employers should only consider utilising this feature with clear policies and safeguards in place.

• Discrimination: Employers should consider the impact of disabilities on individuals' ability to use metaverses – an employer will not normally be able to refuse an individual employment, dismiss them, or subject them to any form of less favourable treatment on the basis that they are not able to use a metaverse because of a disability.

As well as the usual considerations to take into account, metaverses also throw up some new concerns with regards to discrimination, and many questions have not (yet) been answered.

Should employers be able to dictate what employee avatars looks like while they are representing the business (akin to a dress code policy)?

If an employee chooses to give themselves a protected characteristic, such as making their avatar pregnant when they are not pregnant, can they still be discriminated against on the basis of a protected characteristic which they do not have?

While existing laws and guidance will be capable of adapting to cover these changing considerations, we anticipate that law reform and updated guidance will be introduced as metaverses become more integrated in society in order to plug any gaps in the protection offered by existing legislation.

• Place of Work: Where employees are based in a cyber office in a metaverse, the question arises – what employment laws will they be subject to? Where employees still attend a physical office, the answer to this will be more straightforward. However, where they work exclusively remotely, possibly from different places of the world, and interact with other teams members globally, it becomes a much more significant issue for companies. Employers will need to ensure that the employee's place of work and the scope of their rights to work remotely from overseas are clearly defined in their employment contract and/or relevant policies.
• Redundancies: Metaverses will only accelerate the trend towards employees working virtually. This is likely to result in physical retail stores and offices being phased out in favour of online shopping and virtual meetings. This may in turn lead to some roles ceasing to exist, and/or businesses looking to outsource roles to countries with lower employment costs. Businesses facing these issues will continue to be bound by the legal framework around redundancies, which sets out various requirements in relation to redundancy consultation and payments.
• Health & Safety: Constant use of virtual reality hardware could give rise to different health and safety concerns such as eye strain and migraines. Employers should review and adapt their policies and guidelines to encourage workers to take breaks, use appropriate equipment, notify of any issues they experience, and otherwise ensure that the policies are appropriate to the different ways of working being adopted.
• Wellbeing: In the aftermath of the pandemic and the associated rise of working from home and reduction in workplace socialisation, we are already experiencing burnout, a 'Great Resignation', and increasing calls for a new right to disconnect. Businesses will need to consider adopting policies or otherwise actively communicating with employees about work-life boundaries and expectations of time spent working.

While metaverses may accelerate these issues, they will hopefully also start to resolve them, with the more interactive nature of metaverses allowing for greater social connection, and businesses better able to leverage their global workforce to allow employees to work truly flexibly.

In addition to these employment law risks, there are of course many other legal obstacles in connection with metaverses which businesses will need to consider, for example in relation to confidentiality, immigration, tax, data security and intellectual property.

What's the bottom line?

While there's certainly a lot for businesses to consider when adopting metaverses, many of the issues we have been through are just iterations of pre-existing risks, and the novel risks are not likely to eventuate on any significant scale for some time.

In the meantime, for businesses just starting to test the waters in this tricky area, here are our top take-aways and tips:

• Don't dive in too quickly – Give some thought to whether adopting a metaverse will actually assist your business, and whether the benefits of it will outweigh both the legal risks and financial costs. If you decide that metaverses are something that could assist your business either now or in future, start experimenting with them on a small-scale first and identifying the issues which arise.
• Start with your policies – The easiest place to start to approach the risks outlined above is in your policies. Think about the way in which your employees will interact with metaverses, and make sure that your policies are flexible enough to accommodate these scenarios and the different issues which could arise.
• Data Protection – Start looking into ways to minimise the risk to employee privacy. For example, you may want to start out using smartphones or headsets (virtual reality or otherwise), which don't track facial expressions and eye movements and will therefore carry with them a significantly reduced data load and associated risk. Of course, this will also result in reduced functionality and breadth of experience within a metaverse.
• Get advice – If your business is looking to future-proof itself to make the most of the opportunities of metaverses, reach out to us for a discussion on how we can best support your business to make that a (not-so-virtual) reality.