Using AI at Work - Considerations for Employers

AI is software that can carry out tasks a human would usually complete. There is a huge amount of current focus on the extent to which AI (including free generative AI software such as ChatGPT) is going to transform the way we work. Many pro-innovation employers are keen to embrace AI and its potential to help staff manage their workloads. Alongside this, it is also important to consider the potential impact of AI on the employment relationship.

AI in the Workplace

At an individual level, AI software can be used by staff to help them perform certain aspects of their roles, in particular tasks that are repetitive, that can be automated, or tasks relating to content generation and drafting.

At a strategic organisational level, employers can also use AI in order to assist with decision-making and staff management across the lifespan of an employment relationship. For example, employers can use AI to assist with various tasks, including the following:

• Sifting through job applications by 'reading' CVs, or deciding whether to shortlist a candidate for interview.
• Conducting initial interviews with job applicants using chatbots in a video call.
• Supporting HR colleagues in handling repeat tasks such as answering employee FAQs.
• Tailoring training to an employee's specific needs by monitoring their activity and output against their job descriptions and comparing this against the performance of their peers.

It is also possible to use AI in more advanced ways, such as monitoring workers' tasks and performance against targets generated by algorithms, or using it to help employers make decisions as part of a HR process.

What are the Risks Associated with the Use of AI at Work?

AI can offer benefits in terms of automating certain tasks, saving time and improving efficiency in the workplace. However, in an employment law context, the use of AI carries risks in terms of the fair treatment of employees, and also in respect of wider equality law and data protection obligations. As an employer, you should consider the following key areas of risk, and how to mitigate them:

• The output generated by free AI software is not always up to date or factually correct. In particular, the free version of ChatGPT draws responses from its knowledge base that cuts off in September 2021. If your organisation uses AI, you will need to determine the extent to which you can rely on its output before relying on material it produces. It will be important for your organisation to understand how AI might already be used by staff, so that you can build in necessary checks and set boundaries and expectations on its use. You can do this as part of a staff AI policy.
• Staff may not understand the way an AI system works or how it has produced a particular result. It can be difficult to explain how an algorithm works, and indeed the organisation itself may have limited information, depending on the AI in use. If staff are affected by decisions made by AI they do not understand, this risks damaging staff trust and confidence in the organisation as an employer. Effective staff engagement and the provision of appropriate training and support may help mitigate this risk.
• Research has shown that bias can be incorporated into AI algorithms. If your organisation makes a biased decision as a result of using AI software (for example, as part of a recruitment procedure), the organisation could find itself subject to a discrimination claim. It could be difficult to defend such a claim if there was limited information about the algorithm used by the AI software.
• If AI is making automated decisions about individuals where there is no human input, there are specific data protection law requirements that you will have to follow. You should also consider the agreements you have in place with the AI tools if you are inputting any personal information - even if you remove names, it may still be possible to identify individuals from their details.

Staff Engagement and Policy Development

Every member of staff will have an interest in AI, whether at a strategic, organisational level, at an individual level, or both. Some of your staff may already be experimenting with AI personally or professionally. Others might be worried about what the advancement of AI might mean for their job security.

As an employer, you will need to consider the place of AI within your workplace. It is sensible to engage with your staff in order to understand how staff are currently using AI and how this might evolve in future. As an outcome of this exercise, you may wish to develop a policy on using AI at work. A policy would help staff understand the extent to which they are permitted to use AI in their day-to-day roles, and could also be used to explain how the organisation is using AI at a strategic level.  

Best Practice

Employers that adopt a proactive and thoughtful approach to the use of AI in the workplace are likely to be able to harness its potential while also ensuring that employees are protected and treated fairly under the law. As with any new technology, the world of AI will be subject to ongoing legal and regulatory developments. It will be important for employers to stay abreast of these changes in order to ensure compliance and mitigate risk.

For more information or advice on AI, please contact Michael Halsey in our Employment law team on 020 7665 0842. Alternatively, please complete the form below.