by David McCauley Associate, Employment, Pensions and Incentives Group – and Sinead Harrington, Associate, Employment law at McCann FitzGerald LLP
The sudden shift towards remote work in recent years has led to a recognition by employers that, in many instances, work can be effectively completed beyond the physical office building. However, many employers and employees are still struggling to balance the need for engagement and collaboration in the workplace with remote working arrangements.
While there has been much focus on the extent to which employers will require employees to be present in the office, there is now a growing chorus that use of the ‘Metaverse’ will be a key tool for employers and employees in achieving balance, and that it will present the next fundamental change in how we work.
The Metaverse is an expansive network of immersive, real-time virtual 3D worlds that allow users to communicate with each other through a simulated environment, usually by use of a headset, and where individuals interact by figures known as ‘avatars’. The Metaverse will create strong opportunities for team-building and collaboration in the virtual world of work, with employees able to be present with their co-workers in a digital world, regardless of where they are in the outside world.
Many employers are now starting to consider how these enhanced forms of remote working can be used in their businesses, and unsurprisingly, preparing their HR functions accordingly.
Avatars
The very act of employees creating an avatar may raise issues of discrimination (as well as diversity and inclusion), particularly whereby users seek to adopt different genders, races, and characteristics to their own. Will an employer’s dress code policy be stated to apply to avatars? What happens if a worker ‘tries on’ different skin colours, and could this even be encouraged as part of the growing trend of ‘blind recruitment’? What if an employee chooses to use their avatar to ‘come out’ as transgender?
Beyond the recruitment stage, employers may wish to consider the adoption of policies requiring the use of more ‘photo-real’ avatars (which are physically similar to the relevant worker) in the workplace, and which prevent employees from porting such avatars from their professional to their personal lives.
Metaverse misconduct
Workers should be made aware that every HR policy that applies in the outside world will be equally applicable when they are working in the Metaverse. This includes the usual disciplinary procedures which may need to be used to address any inappropriate behaviour or misconduct in the Metaverse.
Because avatars are not autonomous but are controlled by employees, it should be impressed upon employees that they will be responsible for their avatar’s actions. Under existing law, neither harassment nor sexual harassment are defined to require physical contact, with the key touchstone being ‘unwanted conduct’. As such, there is potential for conduct within the Metaverse to amount to harassment or even sexual harassment where the unwanted conduct towards another’s avatar is of a sexual nature. While this may sound unlikely, there have been complaints by Metaverse beta testers in recent months about being groped in a virtual meeting space.
Harassment can arise in unusual settings in the Metaverse; for instance, where a worker’s avatar uses a wheelchair, but the worker does not do so in the real world, that worker may be harassed or ill-treated on the basis of a perception of that protected characteristic under existing law. Furthermore, novel defences may be put forward by employees facing allegations of misconduct blaming, for example, a slipped cursor, or connection difficulties. Facebook’s parent company, Meta has sought to deter employees from committing such offences, including through the creation of a virtual boundary between each avatar to prevent any form of sexual harassment on its platform.
Data
Employee monitoring within the Metaverse may be particularly challenging for employers given the difficulty in ascertaining ‘who is who’, with employers relying on the ‘user’ or employee’s own confirmation of identity.
Furthermore, there may be increased scope for hackers to access the Metaverse in which confidential information is shared between employees, again since it may be unclear who is behind a given avatar.
Employers should also be mindful when relying upon technology developed by a third party, of the contractual terms governing the relationship between any information shared within the Metaverse and the owner of that technology. Employers should closely scrutinise those terms to ensure they retain ownership of all sensitive and confidential information which may be shared from time to time.
Other issues
While there is potential for the Metaverse to cross from employees’ professional lives into their social ones (if workplace events are to be held in the Metaverse), employers should ensure clarity in how employees record their working time in the Metaverse and how this impacts upon employees’ ‘right to disconnect’, particularly where it can be accessed outside of core working hours. Working time rules will still apply as normal, even if working in a virtual environment.
There is little by way of research on the health and safety implications of working in the Metaverse, employers should take steps to address any health and safety risks arising from the equipment used to access the Metaverse. In due course, use of the Metaverse will need to feature in risk assessments. The duty to reasonably accommodate employees’ disabilities may also be engaged, and in that respect, employers should ensure that employees have equal access to their virtual world, and should consider whether employees may require additional accommodations to perform their role within it.
An open question is which laws will apply in the Metaverse. Will they be the laws of the country where the employee, the company, or the IT server is based? This will be a fundamental question, and it won’t be long before it is tested in the Workplace Relations Commission.
Conclusion
Microsoft recently announced that it will be introducing 3D virtual avatars and environments to Microsoft Teams this year and so the prevalence of the Metaverse within the world of work may be closer than some may assume. Many elements of the Metaverse are still in various stages of development, thus affording us some time to consider, and potentially regulate, these issues in advance.
While the development and use of the Metaverse in the workplace will inevitably raise tricky issues for employers, it will create significant opportunities to improve collaboration and engagement within remote teams and improve the effectiveness of remote working. It will inevitably become an important, and exciting, part of the future of work.
This article has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
