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An update on Artificial Intelligence in the workplace

May 3, 2024

Discussions around the benefits and risks of Artificial Intelligence (‘AI’) in the workplace continue apace. The benefits of improved efficiencies and cost saving are widely reported. However there remains significant concerns about the potential for job losses and the lack of regulation in the UK. This blog provides an update on how AI could change the workplace and the need for UK legislation to regulate it. 

What are the latest thoughts on how AI will impact work in the UK?

A report was published by the Institute for Public Policy Research (‘IPPR’) on 27 March 2024 on “Transformed by AI: how generative artificial intelligence could affect work in the UK – and how to manage it”.  

The headline outcome of the report suggests that as many as 8 million jobs in the UK could be lost to AI, unless the government acts now. It is anticipated these job losses will impact those in back office, entry-level roles and part time jobs, which is likely to affect a higher proportion of women and younger workers.

The report also sets out other potential scenarios, the best of these being that all jobs at risk are augmented to adapt to AI, instead of being replaced, leading to no job losses and an economic boost.

The core finding is that “the world of knowledge work will be transformed by generative AI and that we need to start preparing for this now”. 

How is AI regulated in the UK now?

As previously commented on “Artificial Intelligence in the Workplace” the UK does not have specific regulations on how AI should be used in the workplace. Rather, at present, we can only rely on current legislation, such as the Equalities Act 2010, Privacy Law and Data Protection Law.

The government responded to last year’s White Paper consultation on regulating AI in February 2024 by confirming a continuance of the “pro-innovation” approach and maintain this is appropriate at present, and it is premature to do otherwise. This is a principles-based, non-statutory, cross-sector framework and contrasts with how other jurisdictions have approached regulation, with the EU and to an extent the US, taking more prescriptive legislative measures.

The UK’s final AI framework sets out five cross-sectoral principles for existing regulators to interpret and apply within their own remits to guide responsible AI design, development and use. These are: Safety, security and robustness; Appropriate transparency and explainability; Fairness; Accountability and governance and Contestability and redress. The government expects this to be implemented by Regulators and asked them to publish their AI strategic plans for this by 30 April 2024. 

There is no single regulator for employment law, therefore the input from both Equality and Human Rights Commission (‘EHRC’) and Information Commissioner’s Office is relevant. Both Regulators’ responses were produced on 30 April 2024 and can be found here and here.

The EHRC acknowledges that they have an important role in regulating AI but emphasizes that due to budget restraints and their broad remit, they are limited in capacity to do this and will have to prioritise their work, which is concerning, given the reported potential impact of job losses on women and younger workers. 

AI related cases are already being seen, with the EHRC recently reporting on their support for an Uber Eats driver who alleged that he was racially discriminated against by the facial recognition checks he was required to carry out to access his work app. The outcome was a financial settlement, but EHRC reports how this matter highlights the complex and unique challenges that are now being faced as AI usage increases.  

The TUC Artificial Intelligence (Employment and Regulation) Bill

Concerns about the lack of AI legislation in the workplace has led the TUC (the Trade Union Congress) to partner with employment lawyers, academics, politicians and technologists to form an AI taskforce to consider how the gaps in UK employment law can be filled. They have now published their draft of the Artificial Intelligence (Regulation and Employment Rights) Bill.

The TUC states that the proposed bill regulates the use of AI systems by employers in relation to workers, employees and jobseekers to protect their rights and interests in the workplace; provides for trade union rights in relation to the use of AI systems by employers, addresses the risks associated with the value chain in the deployment of AI systems in employment and enables the development of safe, secure and fair artificial intelligence systems in the employment field.

The key proposals include:-

  • A focus on transparency, observability and explainability, with the implementation of a Workplace AI Risk Assessment that would require an employer considering taking a high risk decision in connection with an AI system to assess the risk in relation to health and safety, equality, data protection and human rights. There would also be a requirement for direct consultation with employees and workers before such a decision is made, with the risk assessment being central to that discussion. Employees, workers and jobseekers will be entitled to a right to human reconsideration of a high-risk decision.
  • A ban on the use of emotion recognition technology.
  • An amendment to the existing rights in the Equality Act 2010 to tailer them to the use of AI systems including that employees would not be liable for the discriminatory consequences of AI systems used by their employers, and employers will need to prove the systems are not discriminatory in order to avoid liability subject to an audit defence.
  • A statutory right for workers to disconnect from emails outside their contracted hours.
  • It is also proposed that employers should be able to rely on a defence where they can show there is a properly audited AI system and it is used appropriately.

The intention is that the rights and obligations contained in the proposed Bill will be enforceable in the Employment Tribunal, as in this forum parties are usually responsible for their own costs, regardless of outcome.

What next?

The current government approach means that it is unlikely to move towards implementing the TUC proposed bill. However, with a general election on the horizon, it may be that a Labour government (should they win) would take a different approach. It is expected the Labour Party will publish an AI Strategy shortly and it will be interesting to see their response to these proposals.

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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