Letters from America – risks of discrimination in AI-backed recruitment processes (UK)

Artificial Intelligence

So following our recent post on proposed new regulations it’s not just the EU which is looking askance at the potential risks of artificial intelligence in recruitment.  From across the pond comes news that the US Department of Justice has warned employers to take steps to ensure that the use of AI in recruitment does not disadvantage disabled job candidates, or else face the pain of breaching the Americans with Disabilities Act.  The ADA already requires US employers to make the equivalent of the UK’s reasonable adjustments to allow disabled candidates to take part fairly in the recruitment process.  However, both the ADA and the Equality Act were conceived well before the widespread use of AI in recruitment. Consequently there is concern that automated decision-making originally designed to reduce the scope for subjectivity and bias may actually create new disadvantage for candidates with disabilities, usually by screening out individuals who, by reason of their medical conditions, do not match the “ideals” which the algorithm is looking for.

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EEOC Issues Guidance on the Interplay between the Use of Artificial Intelligence in Employment Decisions and the ADA (US)

Artificial Intelligence

Many businesses use artificial intelligence (“AI”), algorithms, software, and other forms of technology to make employment-related decisions. Employers now have an array of computer-based tools at their disposal to assist them in hiring employees, monitoring job performance, determining pay or promotions, and establishing the terms and conditions of employment. As such, many employers rely on different types of software that incorporate algorithmic decision-making and AI at a variety of stages of the employment process.

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Worker status questions – bringing the outside in (UK)

Question Mark

A basic principle of good employment law, you would think, should be that you can tell an employer when you are caught by it and when you are not.  An early fail then for the rules around worker status, in particular following the EAT’s recent decision in Johnson –v- Transopco UK Limited, which appears to bring into express consideration in that question factors over which the employer will rarely have any knowledge, let alone control.

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“And the nominations are…” — Global Edge up for more silverware in top client service awards

Global Edge LogoBack in November last year I wrote a series of posts here on all the whizzy new features offered by our updated international employment law resource, Global Edge 2.0.  Since then (I claim only substantial credit for this), the thing has just flown out of the door.

Recent client feedback on it has included these three kind offerings:

In a world where data is key and we all want immediate information, Global Edge is a unique platform that allows me to pull comprehensive digital employment law reports, covering multiple countries, and give high level, on-point advice to my senior leadership team. It helps me to be strategic, knowledgeable and proactive, at the click of a button. While there are other similar products, none of them break down the employment law guidance to the same practical level as Global Edge and the fact I know it is regularly updated and kept accurate is also a key differentiator. I find the “On The Horizon” feature to be very helpful in issue-spotting and briefing regional leadership when planning for the months ahead, and it’s also been particularly helpful during COVID-19, with the raft of new legislation and quickly changing guidance. The “At a Glance” feature is also fantastic, as the questions always seem to tune into something I’ve been asked by the business. You can tell it is written by experienced employment lawyers who know what is a hot topic for business right now.

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Proposed new EU regulatory regime for Artificial Intelligence – more relevant to HR than you might think (UK)

Artificial IntelligenceFor the last year or so the EU Commission has been working on the world’s first serious attempt to create a regulatory framework around the use of AI, the Artificial Intelligence Act.  The Proposal itself runs to over 100 pages of dense type and no pictures, so is a fairly off-putting read at first look.  However, there are within it a number of provisions which may have significant repercussions for employers in the UK, let alone the EU.

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Federal Contractors: Register and Certify Your Affirmative Action Programs by June 30, 2022 (US)

The Office of Federal Contract Compliance Programs (OFCCP) will soon require federal contractors to use a Contractor Portal to register and certify that they have their required Affirmative Action Programs (AAP) in place. The portal launched February 1, 2022. Registration began on February 15 and certification began on March 31. Continue Reading

New FCA Policy Statement on Diversity and Inclusion on boards and executive management (UK)

Diverse Group

At the end of last year the Financial Conduct Authority consulted on increasing diversity and inclusion on company boards and executive management in the financial services sector, and on the back of the responses received, has yesterday published its “Policy Statement” which sets out the changes it intends.

By way of quick summary (more detail available in the link above), the FCA is introducing new rules to require issuers to include in their financial report a statement of whether they have met specific board diversity targets, to be put on a “comply or explain” basis. In other words, these targets are not legal obligations but they are designed to throw a not particularly attractive public light upon organisations which do not meet them, or at least are not seen to be trying to do so. In the same way as the Gender Pay gap rules or the Modern Slavery Act, therefore, they face judgement under not the law but the baleful stare of the Court of Public Opinion.

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US Employers Must Submit 2021 EEO-1 Data to the EEOC by May 17, 2022 (US)

eeocEach year, all private employers that are covered by Title VII of the Civil Rights Act of 1964 and that have 100 or more employees must file EEO-1 Component 1 data, which consists of demographic information – such as race, gender, and ethnicity information – of the employer’s workforce by job category with the U.S. Equal Employment Opportunity Commission (EEOC). In addition, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) regulations require certain federal contractors to file a EEO-1 Component 1 Report if they have 50 or more employees and are not otherwise exempt.

On April 12, 2022, the EEOC announced that data collection for 2021 EEO-1 Component 1 filing is now open and employers have until Tuesday, May 17, 2022 to submit their data to the agency. To meet this deadline, all eligible filers should begin the filing process as soon as possible. Continue Reading

Constructive criticism – last straw dismissal decision overturned by EAT (UK)

Dismissal Decision OverturnedEvery so often there comes along a case which is not madly interesting on its own facts (stay with me here) but which still serves as a useful future touchstone on a particular issue.

If your particular interest is constructive dismissal, and in particular, constructive dismissal through the route of the proverbial last straw, then last week’s Craig – v – Abellio Limited is the case for you.

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When voluntary redundancy goes bad – precautions for employers (UK)

Unfair dismissalEmployee volunteers for redundancy, is then made redundant on the terms offered and yet still claims unfair dismissal.  A non-starter, surely?

That was the view taken by the Employment Tribunal in White –v- HC-One Oval Limited at the back end of 2020.  Ms White had volunteered for redundancy so could reasonably dispute neither the existence of a redundancy situation nor the employer’s decision to dismiss her for it.  In the circumstances her case was clearly going nowhere and so it was struck out by the ET on the grounds that it could have no reasonable prospects of success.

However, the Employment Appeal Tribunal has now overturned that decision in a case which provides a number of useful reminders to employers considering voluntary redundancy exercises.

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