The House of Commons released a research briefing on 11 August 2023 on Artificial Intelligence and Employment Law, which delved into the benefits and issues with the increased use of technology in respect of creating and managing employment relationships. Artificial Intelligence (“AI”) in its narrower sense, such as using speech recognition software, to perform a particular task has been encouraged in the workplace, especially in order to assist those with disabilities and varying capabilities. However, utilising AI in a more overarching sense to replace human function can be problematic, especially when it comes to recruitment processes.
How can AI be used throughout the recruitment process?
The research briefing explains that AI can be used at several stages of the recruitment process:
- Sourcing candidates with skills, qualifications, and experience required for a particular job, and drafting documents such as job applications. LinkedIn currently has tools which permit recruiters and companies to find individuals fulfilling similar roles, or those with experience which they are seeking.
- AI algorithms have screening abilities to sift through job applications and CVs, and pick out key words or phrases which the recruiter or company are looking for.
- AI-generated psychometric tests and assessments, which falls under the category of gamification software, can help recruiters and companies to identify individuals with personality traits which they are seeking. Such software can also automatically generate feedback.
- Interviewing tools can further assist to pick out where interviewees have performed well by reviewing facial expression data.
What should companies be mindful of whilst using AI?
Whilst utilising AI can seem attractive from a cost and time-saving perspective, as well as giving companies and recruiters are greater opportunity to source talent, AI should be used in a supportive capacity only. The employment relationship is a unique commitment between an employer and an individual, in which there is a duty of mutual trust and confidence between the parties. Companies need to ensure that they are not allowing AI-generated systems to make key decisions for them, and that prospective employees are assessed on an individual basis.
If companies choose to use AI systems in the recruitment process, then it may be beneficial consider the creation of specific policies to regulate its usage. This will ensure that managers know their obligations, and when to make adjustments to the process if or when the AI technology does not cover a unique scenario, such as when a prospective employee has a disability.
How does AI interact with the Equality Act 2010?
As the Equality Act was legislated on prior to the widespread use of AI in the workplace, there is little to no regulation of it in UK Employment law. Therefore, it is important to be mindful of some limitations of AI in respect of discriminatory indicators.
In 2018, an expert at the University of Maryland conducted a study on facial analysis software. It found that two separate systems ascribed negative emotions to ambiguous facial expressions of black users compared to white users. If facial analysis software were to be used by companies or recruiters during the screening process, this could provide prospective employees with a right to claim racial discrimination.
The larger risk presently is associated with claims for disability discrimination and specifically failure to make reasonable adjustments. Campaigns to increase awareness for neurodivergent conditions such as attention deficit hyperactivity disorder (“ADHD”) are widespread, and AI software which creates psychometric testing and interviewing tools may only truly be effective for neurotypical individuals. Recruiters and companies need to ensure that adjustments are put in place for individuals who have disclosed a disability or even a condition which is not considered a disability, but may do so in the future.
The importance of individual decision-making for Employment Tribunal claims
In the event that companies face Employment Tribunal claims, a key part of defending a claim is ensuring that individuals can explain their decision-making process and present persuasive witness statements. For example, if a company faces a disability discrimination claim and a Claimant argues that reasonable adjustments to the recruitment process were not made, then the company will need to identify:
- Which individuals were in receipt of the application form;
- How the individual or individuals formed their view on the basis of the application form or CV;
- Which adjustments were considered (if any), and;
- How the process was effectively managed with the prospective employees’ input.
It is further imperative that such decisions and considered are explicitly documented, in order to show that the rejection of a prospective employee was on the basis of objective factors, such as the skills and experience required for the role, over their protected characteristic.
Conclusion
The Government’s research briefing provides helpful information on how companies should approach the use of AI with caution. As explained above, there are many risks to using AI software, however the main risk lies with scenarios in which AI is exclusively relied upon for making key decisions, and adjustments are not made when required. Making use of AI can be extremely beneficial to companies’ recruitment processes, however clear policies should be in place and individuals should be making the definitive decisions at each stage of the process.
If you have any queries about the contents of this article in terms of using AI, or putting the appropriate policies in place, then please get in touch with JMW Solicitors here: fcsateam@jmw.co.uk.
