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Artificial Intelligence and Employment Law

Posted on 14th November 2023 in Employment

Posted by

Mai Mbye

Artificial Intelligence and Employment Law

Artificial Intelligence (AI) has become a powerful tool with many organisations now using AI to enhance efficiency and productivity. In the realm of employment law, AI is increasingly being developed to streamline processes and assist with decision making.

However, while AI offers significant benefits, it also poses potential challenges and risks. In this insight, we explore the rise of AI in the context of employment law, looking at its application and potential pitfalls that employers should be conscious of.

The use of AI in Employment

In the field of employment law, AI can be used in various ways such as:

·      Document processing – AI powered software can be used to review contracts and policies.

·      Compliance monitoring – AI algorithms can be used for compliance monitoring and potentially identify any inconsistencies.

·      Data review – By processing and analysing data in real-time, AI can provide insights into employee productivity and engagement. This can then be used to assist with making informed decisions, enhance overall employee satisfaction and improve management.

·      Recruitment – AI may also be used to scan CV’s and applications, extract relevant information and match candidates to job requirements.

The first use of ChatGPT by a British Judge, what’s next?

Lord Justice Birss has recently used an AI chatbot to summarise an area of law and called it ‘jolly useful’. He admitted at a speech held by the Law Society that he had used ChatGPT and thought “it was useful”. It is the first known use of ChatGPT by a British judge.

Lord Justice Birss emphasised that he already knew the answer to the question he had asked ChatGPT, so was able to form a view of its reliability. Although Lord Justice Birss praised the tool’s efficiency, he suggested that it should not be relied on for unfamiliar subjects. He took full personal responsibility for the contents of his judgment and illustrated that he had not solely relied on ChatGPT. The use of AI by Lord Justice Birss indicates the evolving landscape surrounding the use of AI in the legal field.

However, ChatGPT should be used with considerable caution. An American judge was faced with ‘unprecedented circumstances’ after he found reference to case law which did not exist in documents provided by the Claimant’s legal team. The Claimant brought a personal injury claim against the airline Avianca. The New York lawyers had used ChatGPT to conduct legal research and were subsequently fined because of the ‘lack of responsibility’ they had taken in checking whether the ChatGPT summary was correct.

It must be noted, the judge made clear there was “nothing inherently improper about using a reliable artificial intelligence tool for assistance” but warned that lawyers must be cautious about the information’s reliability. ChatGPT states that it ‘may occasionally generate incorrect information’.

Risks to employers

Whilst reported statistics vary, it seems clear that more and more employees are using AI at work. Employers must be mindful of the potential risks associated with AI implementation:

·      Whilst using AI for recruitment purposes may prove to be a quicker and more efficient way forward, employers should be conscious that AI algorithms could inadvertently lead to discriminatory outcomes when selecting potential candidates for roles. With no set restrictions in place, ensuring algorithmic fairness to avoid bias results may prove difficult.

·      The use of AI also raises privacy and other data protection concerns. The collecting, storing and processing of large amounts of personal data increases the risk of data breaches and unauthorised access. Employers will need to be mindful of what security measures are in place when using AI in the workplace, and the extent of which it can be used by employees for their own work. The monitoring of AI usage will no doubt become more of a challenge as the system advances.

·      The inner workings of AI systems can be complex, making it challenging for employers to fully understand and explain the decision-making processes of AI algorithms which have been relied on. This could cause potential issues if a case proceeds to a tribunal hearing where the decisions made are critically analysed in more depth.

Whilst AI can be a useful tool, relying on it solely without proper oversight may lead to errors (as demonstrates in the case above with the US lawyers). A careful balance must be struck between relying on AI developments (which could ease workload) and ensuring fairness, transparency and security. Employers will need to think about what, if any, policies should be introduced to manage usage and minimise associated risks. 

How can Tozers help?

Our dedicated team of employment lawyers will be happy to assist you. Tozers can provide valuable guidance and support in navigating the complexities of AI usage in the workplace. Our experienced team understand the potential risks and benefits associated with AI technology. Contact us today.

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