In the not too distant future we are likely to find we are spending an increasing proportion of our time in a virtual reality called the ‘metaverse’.  We will access the metaverse by wearable technologies and assume virtual identities – avatars – which will shop in virtual shopping centres, play games, socialise in virtual forums and, importantly, work.

Already, those businesses at the forefront of technological development are encouraging their staff to assume avatars and to collaborate in virtual environments – and we expect this trend to continue.

Employment legislation and case law have responded to many significant changes over the years, including email and other digital communication, the gig economy and, most recently, the change to remote and hybrid working ushered in as a result of the COVID-19 pandemic.

However, the advent of the virtual workplace is creating unprecedented challenges for the existing legal framework, simultaneously testing many different aspects of employment law.

Legal identity

Could avatars in the metaverse that walk, talk and work have their own legal identity and be entitled to employment rights and protections of their own? It seems more likely their identity would be synonymous with the identity of the person controlling them and that they would be subject to the legal framework that applies to that person.

However, this will clearly cause a number of legal and practical issues for global companies who facilitate meetings in the metaverse. Employees may be simultaneously in one ‘place’ and yet at the same time subject to entirely different laws.

Increase in virtual harassment

In the same way that bullying in schools and online abuse have become more common due to social media, use of the metaverse at work could lead to an increase in harassment and discrimination. Known as the ‘online disinhibition effect’, it is well known that people feel less restrained when communicating online and say and do things that they would not if face to face with another person.

This could easily translate into employees typing inappropriate comments and/or causing their avatars to act in an inappropriate way when working in the metaverse, at a distance from the physical workplace and the face-to-face judgment of their colleagues and boss. ‘Keyboard warrior’ style employees could therefore generate an increase in employment tribunal claims as employees bring harassment claims for actions that took place in the metaverse.

New risks of discrimination

Similarly, the growth and use of the metaverse at work could cause challenges in discrimination law, particularly in relation to the design of personal avatars that represent employees in the metaverse.

In order to bring a discrimination claim currently, an employee must possess a protected characteristic under the Equality Act 2010, such as disability – but what would be the position with avatars? What happens if the protected characteristic does not belong to both the employee and their avatar?  Even under current discrimination laws it is possible to be discriminated against on the basis of a perceived protected characteristic so by analogy it might be possible for people to be discriminated against based on their avatars.

So how might this change the variety of ways in which employees can suffer discrimination at work? For example, can and should employers require individuals to design an avatar to look like their real life selves? If so, what if there are not sufficient ‘options’ for attributes like skin colour, gender identity and visible disabilities?

Employers wanting to avoid this problem might decide to give employees free reign to design their avatar as they please, but if everyone could be anyone, what personal characteristics would they choose? And what might this say about society and our progress towards equality? Employees’ choices could then give rise to accusations of cultural appropriation at work, as well as potentially exacerbating biases, depending on employees’ selection of characteristics.

To go further, should avatars have to abide by the workplace dress code, particularly if they are client-facing, or can they sport bright coloured hair, tattoos, revealing clothing or overtly religious symbols? Some employers might opt instead to give employees a limited range of avatars and outfits from which to select, but in its own way this is also problematic as it would result in the loss of diversity, identity and the benefits that these bring to organisations.

It could also create a barrier between individuals and their employers if individuals present differently (whether or not by choice) in virtual reality. For example, a physically disabled person may not want to reveal their disability, which could make it more difficult for employers to identify when they need to make reasonable adjustments. These are all hurdles that employers will have to navigate if considering working in the metaverse.

A new kind of connection between colleagues

Immediately being able to be in the same virtual place as someone from anywhere else in the world takes video calls to a new level and will undoubtedly have a positive impact on productivity. This will be particularly so for global businesses with offices and clients spread across the globe. But there is also a physical impact of living and working in an online metaverse – a lack of genuine connectivity with colleagues – something which many have experienced when working from home during the pandemic.

If employees are increasingly interacting online and not face-to-face, employers need to consider the mental health implications of this and work hard to organise in-person events, social gatherings and meetings which bring colleagues together. There are business reasons for this too as good connectivity generally translates into better productivity.

So, what does this all mean?

The metaverse, while growing in popularity, is still in its infancy and its impact on the way we work is largely unknown. Will it be a driver for equality or will it intensify existing prejudices and minimise the value of diversity? Will the technology exacerbate the growing disconnect between employees, their colleagues or their employer or will it improve connectivity and bring employees together on a global scale?

It is important that employers consider the legal risk factors before embracing the metaverse. One thing is for sure: employers, particularly in the tech sector, have an opportunity to reap the benefits of the metaverse to improve the working environment, or risk being left behind.

Emily Hocken is an Associate at Stevens & Bolton LLP