Employment law: the ‘unique challenges’ of artificial intelligence in the workplace highlighted by important new case

In one of the first cases of its kind, UK employment law has been asked to consider whether artificial intelligence (AI) in the workplace can lead to unfairness and discrimination against employees.

It comes as more and more employers consider using biometric systems, like facial recognition and fingerprint scanning, to enhance security, ensure efficiency and monitor employee wellbeing and performance.

If you need legal advice about this complex and fast-changing area of employment law, please contact our highly experienced Employment Team for everything you need to know.

What happened in this AI discrimination case?

After two and a half years of litigation, a food delivery driver has reached an out of court financial settlement with Uber Eats after alleging that the facial recognition system he used to access the platform was racially discriminatory.

Pa Edrissa Manjang, a black Uber Eats driver, was forced to take numerous selfies to confirm his identity whilst working and was eventually suspended after ‘continued mismatches’ with the Microsoft-powered AI facial recognition system.

Filing an employment tribunal claim, Mr Manjang argued that this amounted to indirect race discrimination, harassment and victimisation.

The Equality and Human Rights Commission (EHRC), concerned that the use of AI in this way could permanently suspend a driver’s access to the app and deprive them of an income, took up the case on Mr Manjang’s behalf along with the App Drivers and Couriers Union.

What are the implications of this AI discrimination case?

As the use of artificial intelligence in the workplace grows, this case is an extremely important one.

It not only shows how complex it is for workers to challenge decisions involving AI but how vital it is that employers relying on automated processes make sure they guard against unlawful discrimination.

Baroness Kishwer Falkner, the EHRC’s chairperson, said Mr Manjang should not have had to bring a legal claim to ‘understand the opaque processes that affected his work’.

She added: “AI is complex and presents unique challenges for employers, lawyers and regulators. It is important to understand that as AI usage increases, the technology can lead to discrimination and human rights abuse.

“We are particularly concerned that Mr Manjang was not made aware that his account was in the process of deactivation, nor provided any clear and effective route to challenge the technology.”

What does this AI facial recognition case mean for employers?

Baroness Falkner has called on all employers to take note of the case and to ensure they are transparent and open with their workforce about when and how they use AI.

“When such companies rely on automation to help manage their staff they need to guard against unlawful discrimination,” she said.

The decision comes hot on the heels of leisure firm Serco Leisure being banned by the Information Commissioner’s Officer from using facial recognition and fingerprint scanning to monitor employee attendance amid data concerns.

An investigation had found that the company and associated trusts had been ‘unlawfully’ processing the biometric data of more than 2000 employees to monitor attendance, a requirement for its’ workers to get paid.

What can employers do to ensure they use biometric data lawfully?

The Information Commissioner’s Office has published new guidance for employers on monitoring workers and the processing tools, including facial recognition, used to do so.

Employers should ensure they:

• Follow data protection requirements including consent and transparency with policies that make clear the periods for retention and deletion of data.
• Are open and transparent with employees about how, why and for what purpose biometric data is being used.
• Make sure the data collected is safe from unauthorised access, modification or deletion.
• Look out for the possibility of inherent bias in biometric systems with some systems unable to identify those of one race as accurately as other races, as seen in Mr Manjang’s case.
• Keep on top of changes in guidance and legislation.

Get in touch

If you need advice about this area of the law, please contact Wards Solicitors’ specialist Employment Team.

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