AI and Regulation

We reported last week on considerations for employers in respect of the use of AI technology in the workplace.

The Existing Regulatory Framework 

There is currently no specific regulatory framework within which AI technology is required to operate. This means employers must work within the boundaries of existing law, best practice, and sector-specific regulation in order to inform their organisation's approach to AI. Of relevance to all sectors are the existing frameworks set out below:

• the data protection framework: organisations must ensure they comply with the requirements of the UK General Data Protection Regulation and the Data Protection Act 2018 in their use of AI technology. Using AI in the context of an employment relationship is likely to involve processing personal data. The usual data protection considerations will apply to any personal data that is processed for these purposes, and employers should note in respect of free generative AI tools such as ChatGPT that confidential information is not protected;
• equality and discrimination law: it is also important to be mindful of the requirements of the Equality Act 2010. Research has shown that bias can be incorporated into AI algorithms, and free AI such as ChatGPT has been trained on real world data, so will contain inaccuracies and imperfections. If the use of AI technology results in bias or discrimination, the organisation might find themselves liable under the Equality Act. A key part of any organisation's AI policy will therefore be to build in appropriate checks so that AI-generated content and decisions are moderated before they are relied upon.

A Developing Policy Area

The Government has adopted a pro-innovation approach to AI, and is not currently proposing to assign responsibility for AI governance to one single regulator. The Government's policy paper on AI regulation is open for consultation until 11.45pm on 21 June 2023 and sets out a proposal to adopt a 'proportionate approach to regulation'. The Government's aim is to boost public trust and confidence in AI whilst not hampering the potential of AI technology to develop and become more integrated into the UK economy. The current proposal is for any future AI regulation framework to be non-statutory, at least initially. A Private Members' Bill on Artificial Intelligence (Regulation and Workers Rights) is also not expected to be taken forward.

For more information or advice on AI and Regulation, please contact Gareth Edwards in our Employment team on 0117 314 5220, or complete the form below.