Elizabeth Judson, Client Experience Lawyer in the employment & HR team at Napthens solicitors, explores the considerations that employers who utilise the Metaverse should consider, to make sure they and their people are protected.
According to research carried out by Microsoft, about 50% of Gen Z and Millennials envision doing some of their work in the Metaverse in the next two years, interacting digitally in a 3D world where they can share virtual experiences, in a simulation of the real world or something entirely new.
It goes without saying, but this is new territory for the vast majority of organisations. However, most appreciate that as colleague and customer interactions evolve, they must evolve with it. The transition to video conferencing in the pandemic is evidence of that.
Now, more video conferencing platforms are introducing the ability for users to replace their appearance with a virtual avatar. That’s led organisations to consider how avatars can be utilised for commercial benefit. For example, they can be used to enhance an organisation’s brand and attract a certain target market.
From an employment perspective, avatars could be used beneficially during the recruitment process. To some extent, avatars that don’t portray protected characteristics under the Equality Act 2010 (‘the Act’) could be used to avoid discrimination and bias in the interview process. Employers may also wish to use Avatars during an interview to encourage diversity in the workplace.
However, from an employment law perspective, there are some potential concerns surrounding the increased use of the Metaverse, and particularly the use of avatars, that employers should consider and address.
Potential employee misconduct and the risk of discrimination claims
- Employees may create avatars that are inappropriate. For example, they could create avatars that are contrary to the employer’s brand, not appropriate for a professional environment or even offensive.
- An employee may create an avatar that is offensive on the grounds of a protected characteristic (such as race or ethnic origin), this could lead to an employee claiming discrimination by way of harassment under the Act.
- Employees can create avatars that portray themselves in any manner they wish. For example, an employee may create an avatar that portrays their chosen gender identity, which could lead to them being harassed.
- An employee may create an avatar that portrays a protected characteristic that they don’t have. If the employee is harassed under the Act due to this protected characteristic, they could bring a claim for discrimination based on the perception of them having that protected characteristic.
- Employees may be required to interact with ‘non-playable’ characters. These are characters controlled by a computer. Harassing such a character will not trigger any protections under the Act. However, it is possible that another employee observing such harassment could claim discrimination on the basis of a protected characteristic under the Act, irrespective of whether that employee holds the protected characteristic themselves.
- With the increasing use of the Metaverse in the workplace, it’s important to ensure that reasonable adjustments are made for employees who have a disability under the Act. For example, employees with certain disabilities may require specialised IT equipment.
Protection of confidential information
There are risks to an organisation’s confidential information if avatars are being used in meetings or conferences. If an avatar is being used, it is impossible to know who is behind the avatar and whether they are genuinely connected with the organisation. Hackers have hacked into Zoom calls in the past and displayed offensive material. They could also hack into video conferencing platforms for the purpose of obtaining confidential information which could be used to commit cyber-security breaches or for other purposes.
Going further, concerns around the ownership of content are not new. There is potential risk to an organisation if it is using technology developed by a third party. It is important for an organisation to understand who owns content created on that platform.
What can employers do now to reduce risk?
Employers should review their existing policies and procedures to ensure that the use of avatars is covered:
- Ensure that dress code policies incorporate the dress of avatars.
- Revise disciplinary policies and equality and diversity policies to ensure that any reference to harassment of employees includes harassment of employees’ avatars and that the development of inappropriate avatars will amount to misconduct/gross misconduct.
- Amend IT and communication policies to incorporate rules around the development of avatars and how employees manifest themselves, covering the parameters of what the employer deems to be appropriate within the workplace and also guidance on how employees can reduce the risk to themselves.
- Work with IT support providers to ensure that the security of any platforms is maximised.
- Review the terms and conditions of any platforms used to ensure that the ownership of any information and data uploaded to those platforms is clear.
That said, despite being around for a number of years, the Metaverse is unchartered territory for the majority of society. That in itself brings inherent challenges for people and organisations using it as a platform. There will be new risks and situations that will affect some organisations more than others.
It is key to constantly review and assess policies and procedures with the support of an employment expert, to ensure the Metaverse is a safe and inclusive space for every stakeholder in your organisation.
Elizabeth Judson
Client Experience Lawyer
Napthens Solicitors
