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How will artificial intelligence (AI) affect my employment rights?

How will artificial intelligence (AI) affect my employment rights?

On 11 August 2023 the House of Commons Library published a research briefing, considering the use of AI at work, and identifying how this might have employment law implications. In doing so, it acknowledged that there are no specific UK laws governing or regulating the use of AI in the workplace. As such, the research paper considered how existing laws might be impacted by the use of AI.

The research paper identified the following as being employment law that would be impacted:

  1. In every employment contract there is an implied duty of mutual trust and confidence. Many constructive dismissal claims relate to an alleged breach of this implied duty, rather than a breach of an express contractual term. This duty can include a requirement for employers to be able to explain decisions. This may be difficult where an employer has relied heavily on an AI system.
  2. The Equality Act 2010 provides, amongst other things, that employees should not be discriminated against because of a protected characteristic. It is recognised that there is a potential for bias and discrimination when an employer uses AI.
  3. The use of AI involvement in any decision to dismiss an employee may be problematic. Decisions based on algorithms may make explaining and justifying any such decision difficult. This is made more problematic where intellectual property concerns have discouraged AI developers from sharing information about how their algorithms work.
  4. An employee’s right to privacy under the European Convention on Human Rights might be infringed, particularly in relation to monitoring.
  5. Employees’ data protection rights under GDPR may be infringed, in particular in relation to data processing, and data subjects’ rights to object. Rules in relation to automatic decision-making may also be infringed.

This is a fast developing technology, and arguably the law has not yet caught up with it. Employers will need to be mindful of the fact that as things currently stand, an employee’s legal rights have not changed, and any claims will be determined by reference to existing employment law. At the very least, employers will have to consider how their AI might be scrutinised in the event of a claim by an employee that their legal rights have been infringed. They will have to review what their regulators prescribe in relation to the use of AI, and should take advice if they have concerns as to whether existing employment law might be infringed by their proposed technological developments.

How is AI currently being regulated?

In March 2023 the Department of Science, Innovation and Technology published a white paper called “Policy Paper: A pro-innovation approach to AI regulation”. It set out what would be the UK’s approach to regulating AI. It followed a consultation that had taken place in 2022.

In the paper the government confirmed that it would not be creating a single regulator to govern AI. Instead, it would support existing regulators in developing their approach to AI.

The government confirmed 5 principles that regulators would have to consider:

  • Safety, security and robustness.
  • Transparency and explainability.
  • Fairness.
  • Accountability and governance.
  • Contestability and redress.

These principles will be built into guidance produced by regulators.

Following further consultation, the government will decide whether legislation is needed. In the meantime, the government has provided a list of traits that are to underpin the regulators’ approach. They will publish a regulatory roadmap, and, in the longer term, a risk register for consultation. Thereafter, it intends to publish a monitoring and evaluation report. That report will consider whether there is any need for legislation.

The UK government’s pro-innovation approach can be contrasted with a more interventionist approach being taken in the EU.

What happens now?

We will endeavour to keep you up-to-date with any changes to the law, should this indeed happen in the future. As to whether it will, this is not yet clear.

Mark RidleyEmployment Team

This is not legal advice; it is intended to provide information of general interest about current legal issues. Legal advice regarding employment law should be sought from a specialist employment solicitor. Please contact us should you need any advice.

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