Introduction

Artificial Intelligence (“AI”) is often seen as an imminent threat to employment opportunities. According to the OECD, however, AI is more likely to become integrated with certain tasks within a role than result in net job losses.

AI skills report

On 23 June 2022, the Expert Group on Future Skills Needs (Irish government advisory group) published a report considering the skills needed in the Irish workforce to benefit from the opportunities presented by AI (the Report). While acknowledging that AI will have an impact on almost every sector of the economy and society, the Report highlighted the current skills gap as the most significant hurdle to AI development in Ireland.

The Report finds that due to AI being a “general-purpose technology”, it will have a broad impact on the labour market by improving efficiency, reducing costs, improving service offerings, and supporting decision making for firms. It will complement some roles and replace others. Lower skilled individuals may need to prepare for a new career as their role may become automated, while many mid- and high-skilled workers will need to adapt to new job responsibilities.

William Fry series of articles on AI and employment law

In 2018, William Fry issued a series of ‘AI in the workplace’ briefings with guidance for employers on the various potential uses of AI and relevant aspects of employment law for consideration pre-implementation. 

An overview of how AI can address employment law compliance challenges is available here. These include:

• incorporating AI into the recruitment process, such as filtering applications prior to interview, and streamlining the process;
• tackling gender inequality by using AI to limit unconscious bias when identifying candidates for promotion and to assist in the collation of data concerning the gender pay gap;
• facilitating access to the workplace for employees with disabilities; and 
  harmonising inter-generational working and allowing employees to work longer if they so wish. 

The remaining articles in the series focus on each of these topics in turn:
AI-Assisted Recruitment and Employment Equality Law
AI and Gender Equality
AI, Disability and Accessibility
AI and Inter-generational Working

Fostering employee engagement with AI supported tasks and activities is important for the successful integration of AI into the workplace. 

A key AI risk, as identified in our briefing series, is the potential for bias creation unless the AI is programmed to take account of and respect the equality grounds.   Employers should also be aware of the potential for programmers to introduce latent bias into an AI supported process.  Risk identification and mitigation strategies will therefore be an essential part of any AI implementation programme.

Of course, there have been many legal developments in the workplace since 2018 – some of which were accelerated by the COVID-19 pandemic:

• gender pay gap legislation has been enacted and regulations detailing the information to be reported were published in June 2022 (see here for further details)
• on remote working, the government has issued guidance and a code of practice on the right to disconnect and proposed legislation establishing an employee right to request remote working (see our article here on this topic). 
• the EU Work Life Balance Directive will introduce a right to request flexible working for parents and carers in certain circumstances. Member States are required to transpose the Directive into national law by 1 August 2022, and Irish transposing legislation is currently awaited.  
• EU legislation to regulate the use of AI in certain circumstances, particularly in relation to what it terms “High Risk” AI systems, has been proposed which is expected to become law towards the end of 2023. The legislation would place strict regulatory requirements and reporting obligations on producers, distributors, importers and users of certain High Risk AI systems. From an employment law perspective, it is intended that certain AI technologies for use in the workplace will come within the scope of the legislation. These include recruitment and selection systems that advertise vacancies, filter and candidate evaluation programmes, and AI used to make promotion and termination decisions as well as manage performance.

The increasing implementation of AI assisted processes will inevitably lead to profound changes in society and employers should be cognisant, when seeking to capitalise on the efficiencies of AI, of their continuing obligations under employment law, particularly in the area of employment equality.

Contributed by Caitlin Lenihan