Will A.I be the cause of tensions between employer and employees?

The Trades Union Congress (TUC) has expressed alarm over the rise in workplace surveillance. Recently, Royal Mail employees contested how their shifts' work was recorded using portable devices to track deliveries. Some Amazon employees in Coventry also went on strike in protest of what they perceived as impossible and constantly shifting goals that they claimed were produced and altered by Artificial Intelligence (AI). An employee may claim constructive dismissal if they don't trust the way their performance is evaluated.

A. I’s role in HR duties.

AI improvements can increase productivity in timely HR processes that include hundreds of employees or candidates. By removing the human bias from a decision, an employer may also actually be making a fairer decision based on objective data. However, human judgement should still play a factor in decisions, though, as software mistakes could result in costly legal claims against employers.

Why the “Human touch” is still essential?

Three makeup artists filed a claim against MAC (a division of Estée Lauder) in 2022 after they were required to participate in a video interview as part of a redundancy screening process. Using AI software, their technical skills, facial expressions, and general engagement were evaluated. Even though it was claimed there was also human assessment involved, none of the ladies were successful in the procedure and all were dismissed.

Some Uber drivers based in the UK have taken the company to court in Amsterdam to seek further details on why certain employment-based decisions had been made and whether they were made without human intervention. The software detected the driver had taken longer route than it determined was necessary due to an unexpected disruption on the selected route and that he had not charged the passenger extra for this to a human, due to the automated disciplinary warning letters he received via Uber’s AI, the driver could not challenge the fairness of this decision. 

What may lead to tribunal claims?

If the data sets are not handled carefully, AI may not take protected characteristics into account while making an assessment. To eliminate or reduce risks for uncapped damages for either whistleblowing or discrimination, AI would need to understand how to analyse the following factors:

• The negative labelling of a voice's pitch or tone may also give rise to indirect discrimination claims based on a person's gender, race, or other protected characteristics.
• AI-reviewed performance targets might not consider a person's physical or mental health, which can affect how productive they are. Employees who are pregnant or who are disabled could receive unnecessary negative feedback.
• If a candidate had a cultural background that made them present differently or was neurotypically different from the other candidates, an algorithm could measure their level of involvement using data from a smaller focus group.

What can you do?

It is crucial to understand what you are using AI for and why before moving forward with it because it is here to stay and does definitely play a part in HR. However, before further regulations are implemented, technology needs to advance a little more. Once that choice has been made, action must be taken to:

• make sure a human decision-maker:
  • analyses any AI-generated judgements;
  • delivers results for any HR processes, and;
  • verifies that all decisions are made transparently.
• recognise what the AI is capable of and, more significantly, what it is not;
• recognise the data sets that were utilised to create the AI and be watchful for potential bias;
• To reduce the possibility of an unfair dismissal or discrimination claims, the cause for dismissal must be made clearly when communicating the results to a disciplinary hearing.

Since AI cannot be held legally liable for disciplinary actions or the termination of employment contracts, it cannot be regarded as a separate legal person. As a result, those with legal capacity who have the authority to initiate disciplinary actions and the responsibility to do so must bear responsibility for any harm caused by AI. The AI is not yet sufficiently advanced to ensure that it can understand workplace events and then proceed to enforce employers' disciplinary authorities in an ethical, fair, and proportionate manner.

Employment tribunal claims questioning whether choices made by AI are applied properly to workers are set to increase as the technology is utilised more and more. In order to establish confidence with employees, transparency is essential. If you have questions about use of AI to evaluate employee performance or other areas of employment law, contact our Employment Team today by emailing employment@warnergoodman.co.uk or call 023 8071 7717.