• Insights

Algorithmic discrimination
at work 

United Kingdom
Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
As the use of AI becomes increasingly common in the workplace, and with calls for stricter oversight to protect employee rights, employers should be mindful of potential discrimination risks. 

Algorithmic discrimination at work

AI and particularly the use of algorithms is being implemented in a number of ways in the workplace, whether during the recruitment process, as part of a means of assessing performance, determining pay and promotions, and even as part of the selection process for redundancies (so-called robo-firings). However, it is important to remember that bias and, indeed, unlawful discrimination can occur for a number of reasons when using AI, including as a result of the objectives set for the algorithm, the data on which the algorithm is trained, the (often opaque) causal links identified by the algorithm, or the data used when running the algorithm. 

In a nowinfamous reported case, something clearly went wrong where one CV screening tool identified that being called Jared and playing lacrosse at high school were the two strongest predictors of high performance in the job. There has also been much publicity around the use of facial recognition technology. Uber drivers have claimed that a ‘racist’ algorithm left them locked out out of the ride-hailing app they were required to use, as it was biased against non-white faces.   

Where algorithms such as these are used, disadvantaged employees might argue that an algorithm-based decision has directly or indirectly discriminated against them. Further, the obligation to make reasonable adjustments under disability laws poses further challenges. If such cases were to proceed to court, employers may need to prove that they did not discriminate or that the indirectly discriminatory impact of the algorithm is objectively justified. In many cases, the employer will not understand how an algorithm works (or even have access to the source code), so will face a significant challenge in doing this. Another key question for employers to consider is who will be on the hook if the algorithms they use in the workplace are found to be biased or discriminatory. Some are suggesting that employers should seek indemnities from the third party companies who developed the algorithm.  

It remains to be seen how the courts would grapple with matters like this, but with the use of AI in the workplace rapidly becoming more widespread, it will no doubt only be a matter of time before these matters are tested. 

Rebecca Rule
Managing Associate - United Kingdom
Lewis Silkin