AI Bill: Part 5 - Prohibition on discrimination

24. Discrimination in relation to high-risk decision-making

1. The Equality Act 2010 is amended by the insertion after Part 2, Chapter 1 of section 12A as follows –

“CHAPTER 1A

Artificial Intelligence at Work

12A Definitions

1. In this Act, “Artificial intelligence system” has the same meaning as section 3 in the Artificial Intelligence (Regulations and Employment Rights) Act 2024.
2. The terms “value chain”, “high-risk”, “decision-making”, “data”, “processing”, “jobseeker” and “employer” have the same meaning as sections 4 to 10 in the Artificial Intelligence (Regulations and Employment Rights) Act 2024 when used in relation to artificial intelligence systems.”

25. Jobseekers

    1. Section 39 of the Equality Act is amended an accordance with subsections (2) and (3).
    2. Substitute “39. Employees and Applicants” with “39. Employees, Applicants and Jobseekers”.
    3. After subsection (1)(a), add:

       “(aa) in identifying B as a jobseeker;

       (ab) advertising to B as a jobseeker”

26. Liability of employers and principals

    1. Section 109 Equality Act 2010 is amended to add after (1) –

       “(1A) Any decision-making done by an artificial intelligence system which is deployed by an employer must be treated as done by the employer.”

    2. Section 109 Equality Act 2010 is amended to add after (2) –

       “(2A) Any decision-making within the meaning of the Artificial Intelligence (Regulations and Employment Rights) Act 2024 deployed by an agent for a principal, with the authority of the principal, shall be treated as also done by the agent and the principal.”

27. Liability of employees

    Section 110 Equality Act 2010 is amended to add after section 110 (3) –

    “(3A) A does not contravene this section if A is an employee and he relied to any extent on decision-making within the meaning of the Artificial Intelligence (Regulations and Employment Rights) Act 2024 which is deployed by an employer.”

28. Remedy

    Section 124 Equality Act 2010 is amended to add after (3) –

    “(3A) Where the contravention relates to the use of discriminatory artificial intelligence systems, in setting out an appropriate recommendation, the tribunal must have regard to Part 9 of the Artificial Intelligence (Regulation and Employment Rights) Act 2024.”

29. Burden of proof

    1. Section 136 of the Equality Act 2010 is amended as set out in subsections (2) – (3).
    2. Subsection (2) is amended to include at the start “Subject to subsection (3A),”.
    3. After Subsection (3), insert:

       “(3A) Where person (A) is alleged to have contravened Part 5 (work), as a result of reliance on an artificial intelligence system within the meaning of the Artificial Intelligence (Regulations and Employment Rights) Act 2024, unless A shows that the provision was not contravened (whether by A or by the artificial intelligence system), the court must hold that the contravention occurred.

       (3B) If A cannot discharge the burden of proof set out in subsection 3A, it is nevertheless a defence to a claim under this Act where A is the employer or its agent, and

       1. A did not create or modify the artificial intelligence system,
       2. A audited the artificial intelligence system for discrimination at each stage in the artificial intelligence value chain before using it to make high-risk decisions, as set out in Part 9 of the Artificial Intelligence (Regulation and Employment Rights) Act 2024, and
       3. there were procedural safeguards in place designed to remove the risk of discrimination after the audit was completed which included monitored steps to prevent employees or workers from using the artificial intelligence system in a discriminatory way as set out in Part 9 of the Artificial Intelligence (Regulation and Employment Rights) Act 2024.

       (3C) If A successfully relies on the defence in section 3B, this does not preclude other persons in the artificial intelligence value chain from being liable under the Equality Act 2010 beyond Part 5 (work)”

30. Amendment to Schedule 25 of the Equality Act 2010

    Schedule 25 to the Equality Act 2010 (Information Society Services) is amended by the deletion of paragraphs 1 and 2.