Whether implementing new technology or updating or enhancing existing systems with new functionality including AI, a range of legal considerations arise. These include engagement with employee representatives and employees, data protection compliance, regulatory requirements, discrimination considerations and other employment law impacts, the specific requirements of which may vary by country. Timelines and formalities for consultation often differ significantly, meaning rollout plans, and even what technologies are implemented and where, must be carefully sequenced from the outset.
Employee representative involvement
The effective and lawful implementation of technology in the workplace can often hinge on recognising obligations towards and engaging with employee representative bodies.
With legislative trends increasingly strengthening these obligations, global employers must stay ahead by ensuring they are fully appraised of the current legal requirements and embedding robust consultation processes early in their AI adoption strategies, where required. This approach not only ensures compliance, but also facilitates smoother technological transitions, mitigating other regulatory risks i.e. from privacy regulators, improving the functionality of the technology itself and fosters trust and cooperation within the workforce.
The implementation of workplace technology without timely and adequate employee representative engagement can materially affect whether the technology can be implemented at all, as well as, both project timelines and the associated legal and employee relations risk profile. Issues frequently arise in legacy deployments where relevant obligations were overlooked or only partially addressed. In such cases, employers will typically need to adopt a structured remediation strategy. This may necessitate pausing further rollout while risks are assessed and mitigated, and may include undertaking retrospective processes to reduce exposure and support lawful ongoing use.
Other key employment law considerations
In addition to duties to engage with employee representatives, introducing or materially updating technology can give rise to a range of other employment law obligations, which often vary across jurisdictions.
Employers should assess whether the implementation require employee engagement and/or consent, as well as whether any changes affect employees’ terms and conditions, potentially requiring formal variation processes and employee consent, and manage any resulting workforce restructuring in accordance with applicable legal requirements.
The use of technology in decision-making (including AI-driven tools) separately also creates risks around fairness, bias and discrimination, requiring robust design, testing and governance to ensure outcomes that are objective, consistent and defensible. The risk of discriminatory outcomes can be increased where AI systems make autonomous decisions and effectively operate as a “black box”. In such circumstances, it can be more difficult for the employer to explain why a particular decision was made, or to identify and correct the source of any bias, creating additional risk.
Employers should also consider obligations relating to working time, health and safety, and the need for clear, enforceable policies to support the appropriate and compliant use of the technology in practice. Increasingly we are seeing regulators across the world considering the psychological impacts of AI in the workplace on employees and taking steps to address this.
Key data protection compliance considerations
Implementing or enhancing technology where there is data capture, and particularly where it involves employee monitoring or automated decision-making, requires careful consideration of applicable data protection laws.
Considerations typically include identifying a lawful basis or permissible purpose for processing, ensuring appropriate transparency through clear and accessible employee privacy notices or disclosures, and complying with core principles such as data minimisation, purpose limitation and appropriate retention. Depending on the nature of the processing, impact or risk assessments may also be required.
Employers should also review vendor arrangements, implement appropriate technical and organisational security measures, and ensure that any automated decision making complies with applicable safeguards.
Ongoing governance, auditability and accountability are critical, particularly where systems evolve over time or operate across multiple jurisdictions with differing regulatory expectations.
Key actions to consider
Build employee representative information and consultation requirements into AI implementation planning from the outset, coordinating engagement timelines across jurisdictions.
Assess whether the technology affects terms and conditions, triggers consultation or restructuring obligations, or creates discrimination risks.
Consider privacy and data governance requirements to ensure lawful basis, transparency, vendor controls and safeguards compliance.
Embed fairness and compliance by design by ensuring that implementation planning includes consideration of robust governance, clear policies, and safeguards to mitigate employment law and data protection risks.
Build employee representative information and consultation requirements into AI implementation planning from the outset, coordinating engagement timelines across jurisdictions.
Assess whether the technology affects terms and conditions, triggers consultation or restructuring obligations, or creates discrimination risks.
Consider privacy and data governance requirements to ensure lawful basis, transparency, vendor controls and safeguards compliance.
Embed fairness and compliance by design by ensuring that implementation planning includes consideration of robust governance, clear policies, and safeguards to mitigate employment law and data protection risks.
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© Eversheds Sutherland. All rights reserved. Eversheds Sutherland is a global provider of legal and other services operating through various separate and distinct legal entities. Eversheds Sutherland is the name and brand under which the members of Eversheds Sutherland Limited (Eversheds Sutherland (International) LLP and Eversheds Sutherland (US) LLP) and their respective controlled, managed and affiliated firms and the members of Eversheds Sutherland (Europe) Limited (each an "Eversheds Sutherland Entity" and together the "Eversheds Sutherland Entities") provide legal or other services to clients around the world. Eversheds Sutherland Entities are constituted and regulated in accordance with relevant local regulatory and legal requirements and operate in accordance with their locally registered names. The use of the name Eversheds Sutherland, is for description purposes only and does not imply that the Eversheds Sutherland Entities are in a partnership or are part of a global LLP. The responsibility for the provision of services to the client is defined in the terms of engagement between the instructed firm and the client.
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