Algorithms And Employment Law: What Do You Need To Know?

• Published date: 01 September 2020
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: lus Laboris
• Author: Mr James Davies (Lewis Silkin)

This article explains why claims about algorithms and discrimination are likely to become more common in the years ahead, whilst UK employment law and enforcement mechanisms are ill-equipped to deal with them.

The last few weeks have not been kind to the reputation of algorithms. The controversy in the UK over their use in determining school examination results has included claims by shadow attorney general, Lord Falconer that the algorithm discriminated unlawfully. These developments are highly relevant to employers.

Recent years have seen a rapid growth in the use of algorithms in employment, particularly in recruitment. Algorithms are now being used in interviews, for example to assess candidates on their facial and vocal expressions. Chatbots are replacing people in conducting interviews and textbots are communicating with candidates by SMS or email. The use of algorithms and AI is moving higher up the recruitment funnel to selection decisions and to other HR decisions such as redundancies, performance dismissals, promotions and reward. Algorithms are also being used for increasingly senior roles.

Do algorithms reduce or embed bias?

Academics, especially in the US, debate extensively the pros and cons of algorithms and whether they increase or diminish bias and unlawful discrimination in employment decisions. The proponents point out that, whilst some bias is inevitable, algorithms reduce the subjective and sub-conscious bias involved in decisions made by humans.

There is evidence that algorithms are capable of making better, quicker and cheaper decisions than humans. On the face of it, algorithms bring objectivity and consistency to decision-making. However, the Ofqual debacle highlights the potential for automated decisions to go badly wrong. Just because algorithms are capable of making better decisions, does not mean that they always will.

More than 30 years ago, St George's Hospital in London had developed an algorithm designed to more admission decisions more consistent and efficient (sound familiar?). This was found to discriminate against non-European applicants for medical school. However, interestingly, the school, nonetheless, had a higher proportion of non-European students than most other London medical schools, suggesting that the traditional recruitment methods used by the other medical schools discriminated even more.

Amazon attracted a lot of attention when, in 2018, it abandoned an AI-developed recruitment tool that reportedly...