Work in the metaverse will pose novel employment law questions

The metaverse originated from the gaming industry but is spreading into an array of industries including real estate, commerce, retail and the arts. Although we are still at the very beginning of this technology, it has a number of implications for the concept of work and working life that were explored as part of Osborne Clarke's "Metaverse week" of webinars. As well as creating specific jobs, the metaverse has the potential to pose novel legal issues arising from the technology, including potentially the development of new legal concepts.

The concept of work in the metaverse (an individual as an avatar interacting with colleagues as avatars) may seem distant, especially as currently the metaverse is enclosed within particular platforms. But the end goal is that these platforms will all become interconnected.

Health and safety

Statistics published in December 2021 from the UK Health and Safety Executive releveled that there were 451,000 new cases of work related stress, depression and anxiety in 2020/21 and a high percentage of these cases were caused or made worse by remote working. The metaverse is essentially an extension of remote working, with the possibility of an employee spending the majority of their days immersed in virtual reality. If this is the case, employers will need be aware of the impact this might have on an employee's mental health.

In the UK, employers have a legal duty to assess the health, safety and wellbeing of employees and to promote good working practices. This right will extend to the metaverse, but to what extent this will apply may be difficult to measure where the line between private and personal life becomes blurred.

France has already started to protect employees by establishing a right to disconnect (enabling employees to disconnect from work during non-working hours). The statutory right to disconnect is not defined and therefore gives employers the freedom to negotiate the meaning with their employees.

There is currently no legal framework for a right to disconnect in Germany, but discussions are taking place to consider implementing a similar concept. As with the UK and France, there are a number of other laws German employers will need to take into consideration when allowing employees to work in the metaverse, including regulations on working hours and rest periods.

Upskilling

Employers will need to train their workforce on how to use the metaverse. This might include upskilling people in the business to become specialists, or using external contractors (or atypical workers) to provide training. We are likely to also see the creation of jobs focussed on development of the metaverse, such as designers and engineers.

Employers should also keep diversity and inclusion on top of the agenda, taking care to ensure that work in the metaverse is not just accessible to those employees that are able to afford the equipment and are comfortable using it.  

Privacy

The use of monitoring within the metaverse will need to be considered. Employers will need to find a balance between monitoring employee activity with the employees' right to privacy. In the UK, the duty of trust and confidence is an implied term of each employment contract but excess monitoring could breach this duty. To combat this issue employers should undertake a data protection impact assessment and ensure that any monitoring that does take place is proportionate, only used for legitimate reasons and where less intrusive measures are not possible.  

Some of the above concepts are also applicable to the French and German perspective. Employees need privacy even if they are working in the metaverse but as monitoring is basically permanent, employers will need to carefully define monitoring in their policies. As a basic principle, monitoring should only be taking place during working hours.

In France and Germany, employers will also need to comply with the extensive rules under the General Data Protection Regulation (GDPR), with the UK having similar rules under the UK GDPR, such as the right to be informed, right to informational self-determination and respecting the boundaries between work and personal time. Fines and claims cannot be ruled out in this area and so employers should anticipate issues and bring policies into place in regards to monitoring in the metaverse.

Litigation

There are a number of potential areas of claim that employers might need to deal with, in particular, what will happen if an employee brings a harassment claim. If an avatar has capacity to make physical gestures and facial expressions - could these translate to harassment in the metaverse? Can the current legislation be extended to include avatars?

In the UK, what will happen if an avatar has different protected characteristics (PC) under the Equality Act 2010 to the employee and the harassment is based on the avatar's PCs and not those of the employee? In addition, as the metaverse has originated from game play there is a risk that employees do not consider conduct in the metaverse in the same way as real life. To overcome these issues, employers should make sure they set out policies and educate their employees on what constitutes acceptable behaviour in the metaverse.

A further issue to consider in the UK is vicarious liability and the extent that employers will be liable for the wrongdoings of their employees in the metaverse. It is likely that this will depend on the business activities of the employer in the metaverse and a line will need to be drawn between what conduct an employer is responsible for and what conduct they are not.

Osborne Clarke comment

Work in the metaverse is likely to bring a variety of new issues for employers to consider and the burden between private and personal life will be difficult to assess. The workplace will no longer just be the office and employers should start to prepare for the additional responsibilities this will bring.

Trainee Solicitor Liz Foley helped write this insight. 

This insight draws on a recent webinar that focused on work in the metaverse as part of Osborne Clarke's Metaverse Week. Read our Metaverse Report here.