How does the rise of robots affect employment law?

3 Mar 2017 By James Froud

The growing use of AI means we may need to classify automatons as ‘employees’, and rethink the legal rights of workers in the gig economy

The phenomenon of human jobs being replaced by machines is not new; it has been happening since the industrial revolution. However, the emergence of artificial intelligence (AI) – and the ability for machines to think and learn like humans – is a potential game-changer that may seriously destabilise employment opportunities, economic growth and, ultimately, our society as a whole. Indeed, the World Economic Forum's Global Risks Report 2017 suggests that managing technological change is a more important challenge for labour markets than globalisation. This provokes many areas of legal interest, not least from an employment law perspective.

Should we be doing more to protect jobs?

At present, it is relatively easy for an employer to lawfully dismiss an employee (by reason of redundancy) if the human can be replaced by a robot. The test is simply whether the employer has a reduced need for employees to carry out work of a particular kind. But robots are not classified as employees – indeed they currently have no legal personality at all. Therefore a redundancy situation may still arise even where the employer still requires the employee's activities to be undertaken. Against this context, perhaps lawmakers will need to look at narrowing the definition of redundancy, giving robots some form of legal personality or regulating the circumstances in which a robot may be introduced to the workplace.     

Interaction between humans and robots in the workplace: is the law fit for purpose?

We have laws protecting workers against harassment, which arises when a person engages in conduct related to a ‘protected characteristic’ with the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

We know that robots are capable of creating offensive environments, as was seen last year, when Microsoft's chatbot, Tay, caused controversy by learning some of the less savoury vernacular used on Twitter. However, the law, as drafted, does not cover the automated acts of robots, because they are not a ‘legal person’ in the eyes of the law.

There is a principle of ‘vicarious liability’ – where an employer is deemed responsible for the unlawful acts of its employees – but, as robots cannot create primary liability, vicarious liability is not triggered. The existing legislation may not require fundamental amendment to make it relevant in the new world, but we are approaching a point at which it will need reviewing and, before long, we are likely to see a whole new body of law focused on apportioning legal responsibility for the 'learned' acts of robots.

Undermining social protection systems

Disruptive technologies and AI have caused stable long-term jobs to give way to the ‘gig economy’. This has created a much larger pool of workers who do not benefit from traditional employment rights, suggesting that clever machines are undermining social protection systems (such as employment laws, which are intended in part to provide job security).

We have already seen evidence of the unrest and legal uncertainty this can cause, with industrial action being triggered in public transport services, and legal challenges against Uber and Deliveroo. This begs a number of questions. One is whether governments should be looking to provide greater legal protection to those forced into ‘gig’ labour. This may be achieved by extending individual rights, or perhaps by amending collective rights, which may lead to trade unions gaining more power and political sway. Think less Back to the Future, more 'forward to the past'?

We are fast approaching the point at which we, humans in a civilised society, need to decide what we want. Technology has traditionally increased labour productivity and created new, arguably better, jobs. But growing computer intelligence means greater uncertainty over future job creation and concerns about the wider social instability associated with mass unemployment. There is little doubt that policy decisions will need to be taken and the law shaped for a new reality. In that context, the employment law landscape is inevitably set for change.

James Froud is an employment partner at Bird & Bird

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