On 11 August 2023, the UK House of Commons published a research briefing paper on artificial intelligence (AI) and employment law. The paper provides an overview of AI and its various subcategories, outlines current uses of AI in the workplace, considers the implications of using AI and summarises the current proposals to regulate such use.
The paper notes that there has been a global increase in the use of AI in the workplace, primarily across the following areas:
- Recruitment: AI can play a major role in the different stages of recruitment, including:
- Sourcing – using AI to identify skills, qualifications and experience and chatbots to guide candidates through the application process.
- Screening – AI algorithms can sift through application forms and CVs
- Assessments and psychometric tests
- Interviewing – using an AI video interviewing system which can provide insight into non verbal communication.
- Line Management – AI can help in determining customer footfall to assist in shift scheduling and can also be used to quantify worker productivity and performance. Another area identified for line management is improving workplace safety by monitoring potential hazards.
- Monitoring and surveillance – This is identified as one of the most high-profile uses of AI in the workplace. There are views that monitoring can improve both productivity and workplace safety, for example monitoring systems for delivery drivers. However, they can also raise concerns regarding privacy and mental health.
AI usage is more significant in larger companies (with at least 68% of large companies in the UK having adopted at least one form of AI by January 2022), and most prevalent in Information, Communications and Technology, scientific and technical industries. The main reasons reported by companies for using AI are to create efficiencies, reduce costs, increase productivity or improve cyber security.
The increased use of AI does, however, raise concerns about privacy, reliability, the impact on employees’ mental health and job satisfaction and, more critically, about whether AI technology could displace large numbers of human workers from their jobs in the future.
As the paper acknowledges, there are currently no specific UK laws governing the use of AI in the workplace. However, there are the following existing legal risks and obligations that may impact an employer’s use of AI:
- Common law: In particular, the duty of mutual trust and confidence between an employer and employee. This requires an employer to be able to explain its decision making around, for example, recruitment, pay, promotion or dismissal, and for these decisions to be reasonable and made in good faith. The paper notes that this may be made more difficult in circumstances where an employer has relied on AI systems to make or inform such decisions.
- Equalities law: The Equality Act 2010 prohibits discrimination by employers on the grounds of a protected characteristic (such as sex, age, race or disability). The paper notes, however, there is the potential for bias and discrimination when using AI systems (which may replicate existing discrimination), and that it is harder to objectively justify or establish accountability in respect of any discriminatory decisions. Existing protections from discrimination continue to apply to all forms of AI used in employment and employers will need to ensure that any AI systems used are not in breach of those protections.
- Unfair dismissal rights: Employees with over two years’ service have the right not to be unfairly dismissed under the Employment Rights Act 1996. The paper acknowledges that, where AI has been involved in a dismissal decision, it is possible for a decision to be unfair because of flaws in an AI system and that such dismissal would then be covered by existing protections under the Employment Rights Act 1996.
- Privacy law: Privacy law and the right to privacy under Article 8 of the European Convention on Human Rights places restrictions on the use of surveillance tools to monitor workers. This would include AI technologies.
- Data Protection law: The UK General Data Protection Regulation and the Data Protection Act 2018 impose restrictions on data processing and on solely automated decision-making and provide employees with the right to object. Employers must ensure that the use of any AI tools to collect and process employee data is compliant with the data protection legislation.
The paper also summarises the UK government’s approach to the regulation of AI as set out in its March 2023 AI white paper. Rather than introduce new legislation, the UK government aims to strike a balance between regulation and innovation and has proposed a system of non-statutory principles which will be overseen and implemented by existing regulators. This light touch approach can be contrasted to the more interventionist and strict appropriate proposed by the EU, which includes the implementation of an Artificial Intelligence Act. The paper also outlines the responses that have been received to the UK government’s approach since the publishing of the AI white paper.