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Artificial Intelligence in the Workplace

January 5, 2024

Continuing our theme of writing on topics catching our eye in 2023, my blog considers the increasing impact that Artificial Intelligence (‘AI’) is having in the workplace and gives some top tips for HR and employers to consider in managing this in 2024 and beyond.

Why think about AI?

The launch of ChatGPT in November 2022 meant that last year many of us became more acutely aware of AI, its functionality, and its potential to revolutionise the workplace.  

For those who haven’t yet tried it, ChatGPT is an AI engine that can produce human-like responses to a wide variety of questions asked of it. For example, it can be asked to draft a CV, a dismissal outcome letter or even a blog on AI and its impact on HR and employment law.

Anecdotes of how ChatGPT didn’t always get the answer ‘right’ were supported by a newspaper report of a New York lawyer who had used it for legal research in a court action. The lawyer apparently relied on six cases ChatGPT had suggested he use, but it transpired that ChatGPT had made the cases up and the Judge hearing the case recorded that they were “bogus judicial decisions with bogus quotes and bogus internal citations”. Whilst it is mind-boggling that the lawyer hadn’t checked the suggested cases were real before relying on them, it is a useful warning that ChatGPT is not always reliable.

I will confess that I did ask ChatGPT to write this blog for me, and was given a basic outline, but, as one of my colleagues said, the content was ‘90% fluff’, so I did have to write this myself!

Regulation of AI in employment law

Whilst AI is advancing at pace, there are no explicit UK laws governing the use of AI in employment law.   Stephen wrote a blog earlier last year about the Artificial Intelligence (Regulation and Workers’ Rights) Bill that was put forward by Labour MP Mick Whitley, but this has not progressed past the first stage in parliament. In August 2023 a House of Commons Library report detailed how AI is being used by employers and the legal risks that could arise from that.  The report highlights the challenges there are with relying on current legislation, such as the Equalities Act 2010, Privacy law and Data Protection law when considering how to manage employee matters connected with AI. The absence of regulation of AI in employment law is presenting challenges to HR and employers.

Examples of AI being used in the workplace

I have selected two examples of where we see AI tools being more commonly used in the workplace and how this interacts with our existing employment law.

Recruitment

Over recent years, the use of AI in recruitment has become more common with AI tools being able to review applications to source, screen or select candidates.  However, the Equality Act 2010 requires employers to avoid discrimination in recruitment on the basis of a protected characteristic, and the employer is likely to be liable for discrimination whether the discrimination was committed by a manager making that decision, or with the assistance of an AI tool. 

An example of how the use of AI tools can go wrong in recruitment was seen when Amazon developed its own automated CV screening algorithm.  It transpired that this tool inherited biases from past hiring practices, meaning that male candidates were determined preferable.  Amazon had to abandon the use of the tool.

It is therefore important that where AI tools are being used in recruitment, these are carefully monitored to ensure the data obtained is not biased, and there is still human input to ensure the overall fairness and prevention of bias which could potentially breach the Equality Act.   

Monitoring and Surveillance

With many businesses adopting a hybrid working environment, there are many obvious advantages to employers using AI surveillance of employees, such as monitoring productivity, assessing performance, monitoring social media use. However, there are employment law concerns on how these products can impact on employee’s rights to privacy and their mental health. 

Employers therefore need to ensure they adopt a reasonable and proportionate approach to monitoring their employees and have clear policies in place so that employees understand what the employer is doing and why the employer believes this to be a reasonable and proportionate approach to monitoring them. 

It is also important to keep in mind the restrictions that data protection law can place on collecting and processing data on their employees and workers. Employers using AI in this way need to make sure their date protection policies and privacy notices are reviewed to ensure they are legitimately processing data.

Do we need an AI / ChatGPT policy?

It is easy to envisage a situation where an employee has been found to have used ChatGPT to complete their work and the manager wants to take disciplinary action against the employee for doing this, rather than producing the work themselves. But would your existing policies give the employee fair notice that use of ChatGPT is prohibited?  

It is therefore worth considering implementing a specific AI policy to give guidelines on what is acceptable use of AI for your business (ranging from a blanket ban to guidelines on what level of use is acceptable) and what the consequences of breaching that would be. The policies can also set out clearly what monitoring the business intends carrying out and why. 

If you don’t introduce a specific policy, it is important to ensure that employees are clear on what conduct is acceptable, and that you are able to maintain their trust in how you implement decisions in connection with AI in the workplace. Therefore, as a minimum, it is worthwhile reviewing your existing policies, to ensure they contain specific examples of what is acceptable use of AI.  

Where next for AI in the workplace?

The use of AI in the workplace has increased dramatically in the last year and will continue to do so as it improves in its functionality. AI products undoubtedly bring many benefits to businesses, and it is important to embrace this. Therefore, Top Tips for HR professionals and employers managing this are:-

1. Understand how AI products work and consider how best to mitigate any inherent employment law risks the products or use of them can bring;

2. Carry out regular audits of the operation of AI systems to consider any ongoing potential bias that may arise;

3. Communicate with employees and workers on the use of these products and what is and isn’t acceptable to your business;

4. Consider either implementing a specific policy or reviewing existing policies.

If you have any questions about this, would like to discuss an AI / ChatGPT policy or review your existing policies, or discuss any other employment law matter please do get in touch with the Blackadders Employment Team.

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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