What risks can augmented and virtual reality introduce into the employment life cycle?

Augmented reality (VR) and virtual reality (AR) are rapidly becoming integral tools in the modern workplace. As AR and VR technologies, known as immersive technologies,  continue to evolve and gain more widespread adoption, businesses should be aware of the legal and regulatory risks that need to be managed.

Immersive technology application

Employers are increasingly introducing immersive technologies into their workplaces for a variety of reasons. One example is that the technology can promote efficiency and cost savings by simulating realistic environments for employees to work and train in, which results in time and resource savings when compared to the use of traditional workplaces and methods of training.

Immersive technologies can also engender collaboration among employees as they can be leveraged to improve communication and collaboration for those working remotely by bringing team members together in a virtual space, where they have more of a "presence" and sense of direct interaction than traditional methods of online communication. These benefits result in these technologies also representing a unique and innovative way to attract and retain employees.

As a final point, while the metaverse does not yet exist in a fully fledged form, there are many applications that leverage AR and VR technologies which offer steps in its direction, in the sense of seamless integrated online worlds or digital overlays to the physical world. Embracing these applications is one way that businesses can develop the skills and understanding that will enable them to realise the potential of the metaverse in due course.

Discrimination risks

Despite its various uses, the implementation of these technologies entails a range of legal considerations of which employers should be aware, particularly in relation to the potential for discrimination. The risks here can arise both within and external to the environments created by these technologies. In the real world, employers will want to take into account how disabilities may affect an individual's ability to navigate virtual environments. They will also want to consider other protected characteristics that may result in lower technology literacy and, therefore, impact an individual's ability to participate effectively. An employer should generally refrain from dismissing or treating less favourably those who struggle to integrate immersive technologies due to their protected characteristic.

There are also issues relating to the virtual environments which immersive technologies are often used as a gateway to access, particularly in relation to those that represent a metaverse-type space wherein employees are able to create their own virtual avatar. These spaces offer the unique opportunity that an employee can assign a protected characteristic to their avatar that they do not have in real life. This then begs the question as to whether it is possible for such an employee to be discriminated against for a protected characteristic that they do not have. Some companies are introducing a "virtual dress code" by which they seek to avoid such situations, explicitly signalling their position to employees to provide clarity for both parties.

Employee wellbeing

The introduction of these technologies also introduces the risk of significant health implications for employees. Employers in the UK have a duty to ensure (so far as reasonably practicable), the health, safety and welfare of all employees. In both a virtual and non-virtual context, employers' legal duty to assess risks in the workplace subsists. One evident liability for employers is that headsets tend (at least at the time of writing) to be bulky in construction. If an employee were to wear a headset for too long, there is a clear risk of neck strain and other related injuries. An employer should ensure that it has reviewed its policies to ensure that employees are encouraged to take appropriate breaks, use the equipment in a safe way, and know the process to notify the employer of any issues.

From a mental health and wellbeing perspective, the use of immersive technologies at work is another risk. While the full implications of this approach to work is not yet fully understood, spending a significant amount of time in virtual environments risks being disconcerting for employees, especially if it is their first introduction to the use of these technologies. Along a similar vein, particularly in relation to those virtual environments where individuals are able to present as a "tailored" avatar, there is a real risk that employees will shy away from the real world should they develop a fear of presenting themselves outside of a digitally enhanced, perfected form. In order to counteract this, employers should encourage employees to take appropriate breaks (including getting outside) and to take their annual leave entitlement. Employers can identify any potential health issues early on and support a struggling employee more effectively through regular catch-ups and check-ins and by encouraging the breaking up of working in virtual environments with days in the office or face-to-face interaction via video calls (as appropriate to and depending on the workplace).

Osborne Clarke comment

While UK-based employers often appreciate the benefits that come with the implementation of immersive technologies, they must not make the mistake of making such a change without considering the impact that this may have on their relationship with their employees.

In advance of any such implementation of these immersive technologies, employers should consider completing due diligence to understand any associated risks fully. Immersive technologies in the workplace will initially often pose more traditional risks similar to those seen by companies in relation to other technologies which they may have already implemented. The impact of more novel risks, including some of those mentioned above, are likely to be minimal until immersive technologies are more widely adopted by employers.

Those employers that make the decision to implement these technologies should ensure that effective training, including on the health and safety aspects of wearing a bulky headset, is given to all employees, bearing in mind the fact that, for many, their use of these tools at work will be their first foray into their use. In tandem, employers should review their internal policies and decide on the steps required to align their use of these tools with the emerging regulatory frameworks, as well as adopting new policies where required.

Finally, it is important to remain up to date on developments in the regulation of the application of these technologies in the workplace. As these technologies become more commonplace, we anticipate legal reform and updated guidance to cover any areas not yet anticipated by the legal framework.