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AI at the ET

May 28, 2024

Our next HR Club in Glasgow will be taking place on 25th June. The focus of the session will be the ever-increasing presence of AI in the workplace. As businesses place greater reliance on AI tools, the risk of legal claims is likely to become a bigger issue too. While this may seem to some as nothing more than a theoretical risk, it is interesting to note that we have now seen the first ever application made to an employment tribunal alleging a breach of rights arising from an asserted misuse of AI.

In the claim of Manjang v Uber Eats Ltd and others ET/3206212/21, Mr Manjang worked as a delivery driver for UBER. In order to log on to UBER’s systems and accept jobs, drivers required to use a facial recognition system provided by Microsoft. The system would operate in practice by drivers taking “selfies” of their face and uploading these to the system when they wanted to log on. Those selfies would then be compared by the Microsoft programme to the driver’s main profile picture. If these were found to match, access to the system would be granted.

In implementing this system, UBER were keen to avoid drivers sharing their accounts and where the system arrived at a view the driver’s “selfie” did not match the profile photo they had on their account, then their access to UBER’s system (and therefore the ability to work) would be terminated.

Mr Manjang was a black male of African descent. He started worked for UBER in November 2019. In April 2022, the Microsoft programme terminated Mr Manjang’s access to UBER’s systems following a failed recognition process and a subsequent automated process. Mr Manjang was told by UBER that this had happened due to the Microsoft programme finding “continued mismatches” between his “selfies” and registered profile photo. In essence, UBER implied that Mr Manjang had been allowing others to use his profile to accept work in breach of their rules. In reaching this view, UBER relied entirely on the AI provided by Microsoft.

As a result of this, Mr Manjang raised a claim of indirect discrimination against UBER. Mr Manjang alleged that UBER, in utilising the Microsoft programme, were applying a “provision, criterion or practice” (PCP) which put him at a disadvantage. Mr Manjang asserted that the PCP in question was a requirement to use facial recognition software to enable drivers to access the system/ obtain work. He asserted this PCP put black or non-white people at a disadvantage as, due to their darker skin tone, they would be less likely to be able to pass a facial recognition test so more likely to be blocked from accessing UBER’s systems. He himself had been put to that disadvantage.

Following an unsuccessful attempt by UBER to have the claim struck out, parties agreed settlement terms negating the need for a 4-day hearing which was scheduled to take place in November of this year.

Given parties resolution of the claim, we still have no reported substantive case law on the use of AI in the workplace. However, the fact of Mr Manjang bringing his claim in the first place raises some interesting points employers would be well advised to consider in deciding when and how to rely on AI in making workplace decisions:

  1. In terms of the Equality Act (and likely all other pieces of legislation), an employer will carry liability for any decisions taken by AI which result in a breach of a worker’s rights. Whether there is any basis to defend a claim will very much depend on the legal provisions being relied upon. For example, in Mr Manjang’s case UBER could have sought to show the use of Microsoft’s facial recognition system could be objectively justified as a proportionate means of achieving a legitimate aim. They would of course need to have evidence to support that argument.
  • In terms of how Mr Manjang’s claim was reported, a decision was made to terminate his access to UBER’s system without any human input. While the advantages of AI are well reported and provide huge benefits to businesses, when implementing any technology or taking any more substantive decisions regarding an individual’s employment (most especially relating to dismissal), employers would be well advised to ensure that human oversight is not lost entirely and forms a part of any internal process.
  • In terms of the particular claim brought by Mr Manjang, while no substantive judgment was issued by the tribunal it would seem there is a certain degree of inevitability that the use of and reliance on AI technology would amount to a PCP for the purposes of an indirect discrimination claim. Where AI results in any arrangement, policy or decision being implemented, this would satisfy the general requirements of a PCP, which case law shows is defined in quite wide terms.

Our session in Glasgow will consider these issues in greater detail, looking at:

  • the use of AI in recruitment
  • the use of AI in employee management
  • AI’s impact on data protection obligations
  • intellectual property issues

If you are keen to find out more, you can register here: https://shorturl.at/IerwW

If you have any questions on this or on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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