What is AI?
AI can generally be described as activity devoted to making machines intelligent, and intelligence is the quality that enables an entity to function appropriately and with foresight in its environment.
The exponential growth in machine processing power has enabled techniques of machine learning, by which computers learn through examples and teach themselves to carry out pattern recognition tasks without being explicitly programmed to do so.
AI can be a supportive tool in the workplace for repetitive, standardised and processing tasks.
AI and employment law
AI tools are increasingly being used by employers, not only during the employment relationship but also as part of their recruitment processes. Employers should therefore be aware of potential claims in relation to AI.
Some examples of AI use in the workplace include:
- Recruitment: employers can use AI algorithms that have the ability to sift through CVs, application forms and search prospective employees' social media for certain terms or phrases. Automatic filtering could also be completed of candidates through online assessment and tests and could look at those recruited to define successful candidates.
- Machine Learning: through algorithms, machines can be taught to imitate intelligent human behaviour, including the use of image recognition, which assesses individuals tone or facial movements during video interviews.
- Profiling: employers may use AI to categorise data and find correlations between data sets. This could be useful for predicting whether employees will meet their targets, potentially leading to capability proceedings or dismissals.
- Algorithms and bias: humans usually input data for algorithms to be effective, which can create bias even if done so unintentionally by its designer. Biases can include disability discrimination via facial recognition software, where medical conditions can lower the accuracy of an attempt to read an individual's emotions. Racial bias can also occur, where facial recognition has shown to be less reliable for people with darker skin tones.
- The use of AI in employment can create discriminatory outcomes: Employers should ensure 'algorithmic discrimination' does not take place by reviewing processes before and quality checking decisions made through AI. The Equality and Human Rights Commission published guidance on the use of AI in public services on 1 September 2022. The guidance note discusses how AI could lead to discrimination because bias is embedded in the underlying data or how humans programme the system. In turn, this could cause public bodies to breach the Equality Act 2010.
- Data protection and privacy: employers need to ensure personal data is processed lawfully, fairly and in a transparent way, this includes providing employees information regarding method, the information it collects and why and how the information may be processed. Employers could be in breach of data protection regulations and the employee's right to privacy if this is not done.
Whilst there are challenges with AI in employment and the workplace, stark innovation in the AI world could cause even more transformation in the very near future.
OpenAI (an artificial intelligence research laboratory) recently introduced ChatGPT which is a long form question and answering AI chatbot that can answer complex questions conversationally and appear human.
ChatGPT was trained on vast amounts of data to accurately predict the next series of words in a sentence and is so advanced that it can write paragraphs and entire pages of content to complex requests. For instance, when discussing ChatGPT, media personality, Jordan Peterson, states that it could produce an essay with any given topic and could grade it as a professor would do when asked, within seconds. This was the same for when it was asked to produce the 'next 900 million dollar Hollywood blockbuster', producing a plot and characterisations, along with computer generated photos of each actor.
As ChatGPT (along with other forms of AI) become more advanced, it could have the precarious consequence of completely eradicating the need for human input in any given task, including in the workplace. As with the advancement of AI, great care will need to be taken to ensure the employment law pitfalls outlined above, such as discriminatory biases and data protection breaches, are avoided.
There is currently no legislation that specifically governs AI in the UK, and neither does the UK government plan to create a new law covering AI at this stage. Instead, the government intends to modify current law to bring AI within existing legislation as far as possible.
The EU published a proposal for regulation on AI in 2022, aiming to address the risks, where it could have a significant impact on individual lives. It suggested that decisions relating to employment should be classified as 'high risk' and subject to relevant safeguards. It is not yet known whether the UK would mirror such regulation if introduced into the EU.
The UK GDPR and National Security and Investment Act 2021 already cater for AI and provide some protection for individuals who may find themselves subject to AI decisions. Article 22 of GDPR protects individuals from automated decision making and profiling by limiting the use of such processes and placing safeguards on organisations seeking to use them.
AI is evolving, particularly in the workplace and it will be interesting to see the UK's national position on regulation in the coming years. In the meantime, employers should remain vigilant to minimise the risk of claims and retain a degree of human involvement in their processes involving AI.
Authored by Lydia Keeley.
If you need any advice in relation to AI in the workplace please do not hesitate to get in touch.