The interplay between artificial intelligence (AI) and employment law is a topic of growing importance and concern. In a recent analysis conducted by the House of Commons, the challenges and implications of AI in the workplace were explored. While the report does not propose any new legal changes, it sheds light on the current uses of AI in recruitment, task distribution, performance management, and workforce surveillance.
One of the key challenges identified in the report is the impact of AI on the requirement for an enforceable contract of employment, specifically the element of personal service. This requirement, which ensures that the employee promises to work personally for the employer in exchange for payment, is jeopardized when AI systems are introduced. The report argues that implementing AI may undermine the implied term of mutual trust and confidence between employers and employees.
Additionally, the use of AI in making important decisions, such as disciplinaries, pay rises, and promotions, poses challenges in terms of transparency and justifiability. Employers may find it difficult to explain and justify decisions made solely or significantly by an AI system. This issue becomes more complex due to the lack of transparency in how AI systems reach their conclusions, as well as the protection of intellectual property rights surrounding these systems.
Another concern raised in the report is the potential for bias within AI systems, particularly when it comes to decisions related to employment. The report highlights cases where AI algorithms used in hiring processes demonstrated unfair discrimination against certain groups. Depending on how AI systems are trained, they can perpetuate bias and lead to direct or indirect discrimination, which contravenes the Equality Act 2010. However, it is worth noting that it is challenging to determine whether AI systems are inherently more biased than human decision-makers. The existing framework of employment legislation is considered by organizations like the Equality and Human Rights Commission to provide sufficient protection against discrimination.
Workforce surveillance and monitoring through AI technologies are also on the rise. Employers are increasingly relying on video surveillance, desktop monitoring, and other methods to track worker performance. However, this raises concerns over employees’ rights to privacy and data protection. To ensure compliance with the General Data Protection Regulation (GDPR) and the European Convention on Human Rights, employers must have a lawful basis for deploying AI monitoring technology, pursue a specified and lawful objective, and strike a balance with employees’ right to privacy. However, there is limited guidance on the extent to which employers can employ such technologies, as advancements in voice and facial recognition technology outpace regulatory efforts.
In conclusion, the interplay between AI and employment law presents various challenges in the current regulatory landscape. Striking a balance between innovation and protecting employees’ rights requires careful consideration. While the government has not proposed any new legislation at this time, the issues highlighted in the House of Commons report should be carefully examined to ensure the fair and ethical implementation of AI in the workplace.
