Employment law is failing to keep pace with the rapid expansion of AI at work, which could lead to “widespread” discrimination and unfair treatment in the workplace, according to research commissioned by the TUC.

The new report, carried out for the trade union by employment rights lawyers Robin Allen QC and Dee Masters from the AI Law Consultancy, warns that there are “huge gaps” in British law over the use of the technology at work.

It says that unless urgent new legal protections are put in place, workers will become “increasingly vulnerable” and powerless to challenge “inhuman” forms of AI performance management.

The document explains how the use of AI has been accelerated by the coronavirus pandemic, with AI-powered technologies now making “high-risk, life changing” decisions about workers’ lives, including selecting candidates for interview, day-to-day line management, performance ratings, shift allocation and even deciding who is disciplined or made redundant.

It said that the technology is now being used to analyse facial expressions, tone of voice and accents to assess candidates’ suitability for roles.

The report warns that if AI is left “unchecked” this could lead to greater discrimination, with workers in the gig economy and insecure work particularly at risk.

The TUC says that without the right to a human review of decisions, workers could be “hired and fired” entirely by algorithm.

In light of the report findings, the TUC has issued a joint call to tech companies, employers and the government to support a new set legal reforms for the ethical use of AI at work.

The national union said that these reforms should include a legal duty on employers to consult trade unions on the use of “high risk” and intrusive forms of AI in the workplace, a legal right for all workers to have a human review of decisions made by AI systems so they can challenge decisions that are unfair and discriminatory, amendments to the UK General Data Protection Regulation (UK GDPR) and Equality Act to guard against discriminatory algorithms, and a legal right to ‘switch off’ from work so workers can create “communication free” time in their lives.

As well as discrimination, the report warns of a “huge lack of transparency” over the use of AI at work, with many staff unaware of how AI is being used to make decisions that directly impact them.

TUC research published in November revealed that fewer than one in three (31 per cent) workers are consulted when any new forms of technology are introduced.

“This is a fork in the road,” said Frances O’Grady, TUC general secretary. “AI at work could be used to improve productivity and working lives. But it is already being used to make life-changing decisions about people at work - like who gets hired and fired.”

She added: “Without fair rules, the use of AI at work could lead to widespread discrimination and unfair treatment – especially for those in insecure work and the gig economy.”

AI and employment rights lawyers Robin Allen QC and Dee Masters said: “The TUC is right to call for urgent legislative changes to ensure that workers and companies can both enjoy the benefits of AI. Used properly, AI can change the world of work for good. Used in the wrong way it can be exceptionally dangerous.”

The pair warned that there are big gaps in the law which “must be plugged quickly” in order to avoid discrimination and mistreatment in the workplace.

“Already important decisions are being made by machines. Accountability, transparency and accuracy need to be guaranteed by the legal system through the carefully crafted legal reforms we propose,” they added. “There are clear red lines, which must not be crossed if work is not to become dehumanised.”

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