• Insights

Algorithms, artificial intelligence and employees’ rights in Spain and beyond

Written by
Sagardoy Abogados largest boutique firm focusing on HR law.
Authors
Gisella Alvarado
Gisella Alvarado
Lawyer - Spain
Spain
14.10.21
13
When employers implement systems involving AI and algorithms, they may have obligations to inform or consult employees.
Spain

In recent years, algorithms and artificial intelligence (AI) systems have been introducing a constant stream of changes in the management of business services and activities with a direct impact on working conditions. These changes are taking place outside the traditional scheme of employee participation in the company and despite the fact that employees are not aware of artificial intelligence handling a large volume of data and information which is used to make decisions about them.

For all these reasons a new information obligation toward employees’ legal representatives has been introduced into Spanish labour legislation. The aim is to rebalance the interests of employee protection and improved company productivity. Similar provisions have already been implemented in other countries.

Specifically, Royal Decree Law 9/2021 of 11 May 2021 amends the Workers’ Statute to include a new obligation to inform employees’ legal representatives about AI and algorithm use by establishing that the Works Council (or Personnel Delegates if applicable in companies employing fewer than 50 employees) must be informed about:

‘parameters, rules and instructions on which the algorithms or artificial intelligence systems, that affect decision-making addressing/impacting working conditions, access to and maintenance of employment, including profiling, are based.’

This new information obligation applies at appropriate intervals depending on each case and entered into force on 12 August 2021.

In relation to the new information obligation toward employees’ legal representatives (if they exist), please note the following:

1. The new information obligation is intended to relate to labour decision-making by the company in which an algorithm or AI system intervenes. This means the new right will not apply to employment decisions exclusively based, from start to end, on human intervention.

2. In order to comply with the new information obligation, employers must provide employees’ legal representatives with understandable information on the parameters, rules and instructions on which the algorithms or AI systems are based and which affect the decision-making on a total or partial basis of an outcome given by these algorithms or AI system, and that may have an impact on working conditions, access to and maintenance of employment, including profiling. Simply put, the main objective is for employees’ legal representatives to become aware of how algorithms or AI systems are used, wholly or partially, for making business decisions that have an impact on working conditions and employment.

3. If one part of the algorithm or AI system does not affect decision-making that may have an impact on the factors set out above and another part could have an impact, the information obligation only applies to the part that may have an impact.

4. This information obligation must be complied with in relation to algorithms and AI that already existing in the organisation and those that may be added or implemented in the future.

5. The law does not regulate when the information needs to be provided to the employees’ legal representatives. In other words, the law does not state if the information must be provided prior to the implementation of the management system by algorithms or AI, simultaneously with the change or immediately after it. In any case, we recommend complying with the information obligations before implementation.

6. Failure to comply with the new information obligation qualifies as a serious infringement and could lead the Work Inspectorate to impose an economic fine that may range between EUR 626 and EUR 6,250 (between EUR 750 and EUR 7,500 after 1 October 2021). On top of that, the employee’s legal representatives may file a claim for damages against the organisation.

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