Dec 24

AI use at work – do businesses need an employment policy?

Written by Sally Togher
Head of Employment

DDI: 01423 724613
M: 07892 792453
E: sally.togher@raworths.co.uk

Rapid changes are underway in the world of work due to the increased use of increasingly sophisticated artificial intelligence (AI) products that are available to employees and contractors. As with any innovation, it can take a while to fully understand the benefits and the risks, and for policies and procedures to catch up.

‘Employers and recruitment agencies use AI in recruitment; and employees are making use of AI to carry out their jobs, sometimes on their own initiative,’ says Sally Togher, Head of Employment at Raworths, based in Harrogate, North Yorkshire. ‘While the advantages can be transformational, using AI is not without risk and now might be a good time to consider developing a policy on the use of AI by employees, and to check with your recruitment agencies how they use it’.

In this article, Sally highlights key areas for employers to address, from an employment law perspective. In addition to these issues, businesses should be aware of other legal implications which are outside the scope of this article, including privacy and data protection, commercial contract law and intellectual property.

Discrimination and bias in HR decisions

Just like a human, decision-making AI used to sift job applicants can display bias and discrimination which means that the best candidates may not be put forward. Even if you engage a recruitment agency, your business could potentially be liable for a discrimination claim based on the agency’s use of AI, for example if a suitable female job candidate was not shortlisted.

Employers should ensure safeguards are in place, for example ensuring that the agency is aware of the organisation’s equality and diversity recruitment policy. You should seek assurance from the agency about the steps they take to minimise bias, along with confirming that there is sufficient human involvement to minimise the risks. You can try to negotiate indemnities from the agency to protect your business against such claims, although the agency may not be willing to change their standard terms and conditions.

Employers who use AI in decisions on other HR functions, like performance management and performance-related pay awards, should be transparent about the use of AI and the safeguards. In particular, the employee should have the right to speak to a manager who can explain the decision. This should help maintain trust with the workforce and avoid feelings of alienation.

Use of AI to perform a job

In the absence of any clear instructions or policy from their employer, many employees are already embracing AI in the performance of their job, sometimes without the knowledge of their manager. AI can make some work tasks much quicker and may be more accurate than an employee, but this is not always the case. Employers need to take into account risks and, depending on the work task, these may involve:

• ‘hallucinations’ made by generative AI which makes something up, while often sounding very convincing;
• breaches of confidentiality; and
• ineffective use of prompts, resulting in poor quality or inaccurate work.

What employers should be doing

To minimise risks and allow your employees to make the most of AI, employers should:

• assess the nature of their business and the tasks employees perform and decide where to deploy AI;
• decide how it should be used;
• address barriers to adoption by providing support and training;
• consider that in some fields, significant training will be needed to reskill employees as their jobs are transformed by AI;
• facilitate team meetings to share experiences and tips for using AI to ensure no team members get left behind as the team’s skills and the technology develop; and
• provide staff with a clear, written policy and explain the policy to staff.

What should the policy on the use of AI contain?

While the content should be tailored to fit your business, the policy should set out:

• which AI tools employees can and cannot use;
• tasks for which they can use AI;
• the employee remains responsible for the work and must check the output;
• guidelines to avoid breach of copyright; and
• measures to protect confidential information and personal data.

Supporting employees through change

Employees may feel anxious about being left behind or being replaced by AI. While in some sectors, there may be job losses, this is not inevitable in every business. Businesses that do not adapt, may be less competitive.

Where appropriate, employees should be reassured that by adapting to the changes and harnessing the benefits of AI they can help the business remain competitive. A clear policy, which is properly implemented with appropriate training, will help the workforce to understand what is expected from them in relation to using AI and how to use it effectively.

How the employment team at Raworths can help

Specialist employment law solicitors at Raworths can work with you to prepare a bespoke AI policy for your workforce to effectively manage the risks of using AI at work. We can advise you on measures to minimise the risk of discrimination claims and help you defend any such claims or allegations.

For further information, please contact Sally Togher in the employment team at Raworths on 01423 566 666 or email sally.togher@raworths.co.uk.  Raworths LLP is based in Harrogate, North Yorkshire.

Published on 16 December 2024

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.