Insights

Nighat Sahi

Published 10 May 2024
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AI and the Workplace

User beware

AI has been around for a long time but really hit the headlines with the launch of ChatGPT in 2022. Since then, AI has hurtled into the mainstream with people using it to complete work projects, for homework, to generate images and music, to come up with ideas, translate texts, and much more.

In fact, according to the Business of Apps, the number of Apps in the App Store with AI in the name rose by 1033% between 2020 and 2023. And ChatGPT gained 100 million users between launch in November 2022 and January the following year. 

The advantages of AI in the workplace

The advantages of AI in the workplace are many. They include the ability to streamline, automate and drive efficiencies, which in turn, of course, has an impact on productivity and cost. AI can handle repetitive tasks and thereby free up employees, it can manage large quantities of data (identifying patterns, creating reports and predicting outcomes), it can design, improve processes, automate assembly and it can manage communications.

Across multiple industries, AI is being used in the workplace to help with everything from customer relations to recruitment, production and security. But with something that is so fast-moving and transformational, there will inevitably be concerns, disadvantages, and challenges.

That means that for any employer who is or is thinking of using AI in their business, there are a number of areas where caution and a planned and considered approach will be essential to avoid serious future problems. It’s an area that is very much still evolving and inevitably, we can expect case law in the future in respect of some of the many areas where AI is having an impact. So in this post, we take just a brief look at some of the main areas that employers and employees need to be aware of if using AI in the workplace.

Employment contracts and redundancy

BT made the headlines in 2023 announcing that it intends to cut up to 55,000 jobs by 2030 and replace many of the roles with AI. A more recent report from ResumeBuilder found that one-third of business leaders say AI had already replaced workers in 2023. 

But at the same time, there is also strong evidence to suggest that AI can generate employment not just in technology but in other roles that require creativity, highly interpersonal skills, a deep understanding of people and unpredictable problem-solving abilities.

For employers, this may mean redeploying employees to new roles and or making redundancies. Attention to employment contracts will be essential particularly if an employee’s day-to-day duties are likely to change significantly and such changes to the contract will require employee consent. There may also be a need to rethink employee training and skills.

Dismissal of an employee as a result of a diminished need for them because AI is now carrying out their duties is potentially a legitimate redundancy situation and therefore a fair dismissal. However, employers still need to be mindful of how redundancy situations are managed, perhaps more so as trade unions are understandably wary of large-scale loss of employment. The last thing you want is industrial action. Care and attention to succession planning will be needed too, if an employer is letting go of their junior employees.

Recruitment, bias and discrimination

AI is increasingly being used as part of recruitment to screen CVs, conduct video interviews, and analyse candidate data. However, this is an area that can give rise to serious issues.

Although a report by Springer Nature in September 2023 found, “AI-enabled recruitment has the potential to enhance recruitment quality, increase efficiency, and reduce transactional work.”, it also found, “algorithmic bias results in discriminatory hiring practices based on gender, race, color, and personality traits.”  

In short, AI can result in unfair employment practices, bias and the potential for discrimination. By way of an example, imagine a previous recruitment campaign was driven by manager X who had certain biases in terms of age, sex or ethnicity. The employer is now using AI for the current campaign and the AI assesses the characteristics of previously successful candidates employed under the former manager’s regime. AI finds certain common characteristics and uses these as the criteria for selecting future candidates. Bias has crept in. In fact, this happened recently at Amazon, where their AI was found to be biased against women, because CVs previously successfully submitted to the company were primarily from men.

AI is also susceptible to bias from the developers and data scientists responsible for their creation and development.

The counterbalance to these risks is that organizations must exercise caution when choosing their AI and take time to understand the data source and quality. Transparency will be needed too, and employers will need to create an AI strategy that includes ethical considerations and policies on issues such as diversity and inclusion as well.

Ownership and accuracy

It’s one thing using AI generated content for personal reasons, but what happens when you use it for commercial purposes, perhaps in your marketing materials? You know that you can’t use someone else’s content without their agreement but what about AI? Who owns the AI output?

This is a really complex area. AI tools learn from external data and materials much of which may be in the public domain already and some of which may be copyright. To what extent, if any, you are infringing someone’s copyright may be very difficult to tell.

What’s more, under UK law, in order to be able to achieve copyright protection, material has to be ‘original’ and created by way of someone’s skill, judgement and effort, so the question arises as to whether AI generated content can itself qualify for that? After all, you don’t want to find that carefully constructed advertising campaign using AI generated content is being copied by your competitors.

If it does qualify for copyright protection, then the next question is whether ownership lies with the user of the AI, the software creator or even with the AI algorithm itself. In the absence of legal clarification in the form of legislation, business owners will need to ensure they have contractual safeguards in place.

There’s also the question of accuracy and duplication. AI is great at generating answers and texts but there is no guarantee that the material is accurate and is not a duplication at least in part of other material available on the internet. And as yet, it’s not clear how search engines like Google will treat website content that is AI generated and whether it will adversely affect your search engine results. Although the general feeling is that it probably will.

Privacy

Privacy and misuse of data are two large areas of concern. Employers and organisations should already have safeguards in place to protect the privacy of their employees’ and customers’ information, but these will need to become increasingly robust.

Then there are the ethical concerns as businesses are able to collect and collate more and more data about their employees and customers. Anecdotal evidence suggests that large numbers of employers have already used AI to analyse emails and social media messages. This is another grey area and a difficult area to police, but employees may rightly wish to know what data had been collected and to challenge any assumptions or decisions that have been made as a result.   

This in turn means employers will need a process and policy for managing this and transparency and issues of trust will need to be carefully considered.

Regulation

In the spring of 2023, the Government published its policy paper on “A pro-innovation approach to AI regulation” which was open for consultation until June 2023. On February 6, 2024, the Government published its response to the consultation setting out a “flexible approach to regulating AI through five cross-sectoral principles for the UK’s existing regulators to interpret and apply within their remits.”

These five areas are:  

  • Safety, security, and robustness
  • Appropriate transparency and explainability
  • Fairness
  • Accountability and governance
  • Contestability and redress

The principles will be implemented on a non-statutory basis. But the Government also listed action it intends to take during 2024:

  • continuing to develop UK domestic policy position on AI regulation
  • progressing action to promote AI opportunities and tackle AI risks
  • building out the central function and supporting regulators
  • encouraging effective AI adoption and providing support for industry, innovators and employees
  • supporting international collaboration on AI governance

On 30 October 2023, as part of the Hiroshima AI Process, the G7 nations finalised the 11 International Guiding Principles to govern AI. A voluntary code of conduct was also published. Both are stated to be “living documents” to be adapted over time and they deal with risk management, transparency, good governance, research priorities and standardisation. 

UK law

The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018) regulate the collection and use of personal data. Where AI uses personal data, it falls within the scope of this legislation. The Equality Act 2010 will be applicable in cases of discrimination.

There are many industry leaders who are disappointed that the Government does not currently have plans to legislate further in respect of AI and the workplace and for now, employers and lawyers will have to work within the existing piecemeal legal framework. The use of AI in the workplace looks unlikely to lose its momentum and therefore if you are considering or have already deployed AI, it is essential that you understand the full implications and have appropriate safeguards and policies in place.

If you would like to discuss the use of AI and the workplace, please get in touch. 

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