Technology managing people - the legal implications

We present our Report to the Trades Union Congress (TUC) on the legal implications of Artificial Intelligence (AI) systems in the post-pandemic workplace.

Our Report must be read in conjunction with the TUC’s own paper published in the Autumn of 2020 called “Technology managing people: The Worker Experience” (the “Worker Experience Report”), published on 30 November 2020, which provides an invaluable and unique insight into the way in which AI is already being used and perceived in the workplace.1

The TUC has an overarching purpose, which is “to make the working world a better place for everyone”2 – an aim we can all share. We believe that AI systems have much to contribute and should be embraced, yet these new technologies need to be deployed in the right way. Our Report concludes that there are real problems with the deployment of AI in the wrong way and explains that these difficulties must be addressed by an effective legal system.

In some respects, our concerns can be met by the effective use of existing law. In others, our analysis shows that there are significant gaps in the legal protection, and we conclude that, even where current laws are potentially effective, there are important steps that should be taken to ensure that these laws are better known and more effective.

In the Introduction, we set out why the work by the TUC is so timely and so important, noting the consequences for society if we do not reflect on the implications for the uncontrolled development and use of AI systems in the workplace.

1 See https://www.tuc.org.uk/sites/default/files/2020- 11/Technology_Managing_People_Report_2020_AW_Optimised.pdf

2 See here.

In Chapter 1 we then set the scene for our analysis, explaining how new technologies involving AI systems are impacting on the modern employment relationship. This Chapter outlines the nature of these new technologies and highlights the trust deficit that has arisen. It describes key aspects of the legal relationship between the employer and those who work in its enterprise and points out that there are gaps in legal protections for employees and workers.

It concludes by setting out ”red lines” that should not be crossed if AI systems are to exist in harmony with, rather than undermine, the basis for the modern employment relationship. We urge the TUC to adopt these red lines as the basis for its future work in this field.

Chapter 2 continues this theme by discussing the capacity of UK laws to control the use of AI systems in the workplace, explaining how bias can occur when these systems are used and discussing more widely what are the implications of using them by reference to four case studies. This Chapter also contains 15 specific conclusions about the legal consequences of using AI systems in the workplace.

In our final Chapter 3, we explain the principles that we believe should shape the future regulation of AI systems used in the workplace with 17 recommendations for action and reform. These are directed to legislators, regulators, and to the trade union movement. We believe that they will be welcomed too by any business wishing to adopt a modern and human-centric approach to AI.

This is our Report, but we must state clearly that it would not have been possible to undertake this work without the great support we have had from the members of the TUC’s AI working group, in particular Mary Towers, Policy Officer (TUC), Andrew Pakes, Director of Communications and Research (Prospect), Alison Roche (UNISON), Jenny Lennox, Bargaining and Negotiations Official (UCU), Steve Garelick (GMB) and support from our colleagues within Cloisters barristers’ chambers, especially Joshua Jackson and Tamar Burton.

Working together as the AI Law Consultancy, we have looked at these kinds of problems for several years now, engaging with them from many different angles. We

are therefore delighted to have been asked to help facilitate the TUC’s engagement with the legal implications of new technology in the workplace.

It will be seen from the detail of our Report that there is much to be done. We very much hope that our Report will help the TUC to plan an appropriate course of action.

It has been a privilege to work with the TUC on this important issue.

Robin Allen QC & Dee Masters

The AI Law Consultancy Cloisters

Download full report (PDF)