A Virtual Insanity: Misconduct in the Metaverse

The metaverse is the latest advancement in social technology. It is mainly used for entertainment purposes yet is beginning to emerge in the professional world. While virtual working has proven beneficial in recent times, a metaverse solution introduces unanticipated dangers that employers and HR managers must prepare for.

The metaverse is a virtual world populated by a digital representation of you, known as an avatar. Your avatar is your vehicle in navigating this virtual world and they are designed to be fully customiseable, affording you the discretion to present yourself in whatever way you choose.

However, one’s avatar choices could give rise to discrimination and misconduct issues. For example, an employee may make inappropriate comments about another avatar’s design or command their avatar to perform acts of unwanted conduct. While this may be regarded as ‘fun and games’ to one person; it may be perceived as a form of harassment to another.

In the UK, a person has the right to not be discriminated against or treated less favourably for possessing certain protected characteristics. However, might a metaverse, which is used as a professional workspace, destablise such safeguards? Would a disabled employee be treated less favourably if there was no option for them to customise their avatar to showcase their disability? If avatars are fully customisable, might one be able to obtain a benefit disingeniously? Take, for example, an able-bodied employee posing as a disabled person in order to receive additional benefits from their employer.

It must be made clear that avatars are not sentient, and it is not reasonable for a person to absolve themselves of any wrongdoing by stating that it was their avatar that had engaged in the misconduct complained of. As such, it is the users whom are ultimately responsible for the actions of their avatars and, therefore, an employer may be well within their rights to subject an employee to a disciplinary procedure because of such misconduct.

However, consider the following:

1. How can an employer be absolutely sure that it was that employee who engaged in the misconduct complained of;
2. Is it a defence for an employee to say that their account was ‘hacked’ or that another individual had taken possession of their account and engaged in such behaviour; and
3. If that was the case, would the employer be subjecting an innocent employee to an unfair disciplinary process;
4. Might that innocent employee claim that the employer committed a repudiatory breach of contract in doing so and initiate legal proceedings against them?

Employers who are thinking about incorporating the metaverse into their operations should consider their policies carefully and be clear as to how they can best protect their business, reputation, and employees.

If the metaverse is something you are looking to adopt and need assistance is navigating, SMB are happy to help. Please contact Joe Hennessy at joe.hennessy@smb.london.