Artificial Intelligence and risks associated when used in the workplace

Artificial Intelligence (AI) is here to transform our lives – from a simple interaction with a virtual assistant to its full use in the workplace. Modern workplaces are increasingly open and trusting the tools powered by AI to perform certain human resources and employee management functions. The idea is that AI can replace certain repetitive tasks previously performed by employees to allow humans to concentrate on more complex issues.

By using AI, companies can save time and money and have a well-organised workplace where there is a potential decrease of human error. However, AI imposes substantial challenges if not used appropriately. Employers, in particular, should be cautious in how AI is used by employees and take necessary steps to eliminate any issues that may arise.

This blog will address the main issues that could arise using AI in the workplace and how companies should tackle those issues.

Regulating AI in the UK

The UK is taking a more open approach when it comes to regulating the use of AI unlike the European Union who has implemented an AI Act. The UK is currently relying on existing legislation such as the Equality Act, UK GDPR law and other general laws that can indirectly impact the use of AI in the workplace. There had been a proposal of implementation of legislation though the Government decided that creating a single regulatory framework is not ideal as AI is a general-purpose technology and applies to many industries and instead it’s more suitable to set principles that support existing regulators. However, that approach can create a panic particularly to employers as there are not specific rules to apply that can manage how AI is used within a business. Employers need to generate specific frameworks to ensure that AI is ethically used and in accordance with the relevant laws so they can mitigate potential risks. Some of the risks identified are:

• Discrimination and Bias
• Unfair dismissal
• Data and Privacy Concerns
• Infringement of Human Rights

Discrimination and Bias

It has been suggested that AI poses a risk when it’s used for hiring, promoting existing employees, evaluating performances or even terminating contracts. The way AI systems produce outcomes is by using algorithms and data that has been provided. This can lead to unintended discriminatory results against particular groups that are protected under the law for having a protective characteristic. Employers must ensure that all groups of people are treated equally and establish policies to that effect.

Unfair dismissal

At present, employees with a continuous service of two years have the right to not be unfairly dismissed. An employee cannot be dismissed unless the employer can demonstrate the reason for the dismissal was a fair reason following a reasonable procedure. When AI tools are used to dismiss employees, there is a potential risk of leading to unfair dismissals as managers may not fully understand how algorithms work, and how to interpret and use any resulting data. AI can terminate employment without following the necessary steps which can lead to numerous unfair dismissal claims for the employer. It is worth mentioning that the current UK employment law is not designed to be compatible with AI technology and thus it is very likely that a tribunal may conclude that it is not reasonable for the employer to dismiss an employee based on a decision made by an AI tool that is not transparent, and the dismissal is unfair. That is not to say that employers should totally disregard the use of AI in the dismissal process but ensure not to make decisions solely based on AI.

Data and privacy concerns

Data protection implications and privacy concerns are key when it comes to the use of AI tools in the workplace. Data protection in the UK is governed by the General Data Protection Regulation (EU) 2016, commonly known as GDPR law, and the Data Protection Act 2018. AI tools processes personal information and thus employers must ensure to comply with the data protection laws. Employers should never go beyond what is necessary when it comes to processing data and must ensure that the processing is lawful, fair and transparent. Therefore, individuals must be aware as to how and why their data is being used and are aware of the potential consequences of processing.

Human Rights and AI

AI can also be used to monitor employees especially now that hybrid working has become the norm. It should be, however, noted that the continuous monitoring of employees to assess their productivity levels can in fact infringe their right to privacy under Article 8 of ECHR. The employer-employee relationship is thought as a relationship of mutual trust and the continuous monitoring of employees can break that trust as employees might feel that their rights are not being respected by the employer. Therefore, a balance should be struck when AI used in such cases. It is also necessary for employers to inform their employees about any monitoring and explain the reason which needs to have a legitimate aim.

The potential risks are non-exhaustive, and it is too early to determine how AI could impact the workplace – it seems that it is more like wait and see matter for the purpose of risk management.

What should employers do to manage those risks?

It might be relatively early to determine the consequences of the use of AI in the workplace. Nonetheless, employers can take some steps to try and mitigate those risks. The most obvious is to provide training to their employees ensure that their AI systems are regularly reviewed. Having internal policies and guidelines that are available to all employees is key to ensure the ethical use pf AI. Additionally, it is crucial for employers to be transparent in relation to data processing. Lastly, human oversight is important to avoid the risk of unfair bias that can be generated using AI.

Undoubtedly, AI is the future, and it can be a highly valuable tool for business growth, but employers must ensure compliance with the law.

Gilson Gray is happy to answer your questions regarding any Employment law issues. If you’d like more information, please contact a member of our Employment Law team here.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.