There is no denying the increasing prevalence of artificial intelligence (AI) within the workplace. Many companies are already utilising AI in various aspects of their business to streamline procedures and enhance productivity, often by completely removing the need for human intervention. When it comes to the disciplinary procedure however, is it reasonable to enlist AI assistance? First and foremost, HR professionals should not be using open AI tools for confidential staff matters as they otherwise risk infringing personal data rights and perhaps disclosing the employer’s confidential information in breach of contract, as covered elsewhere on M&P Legal’s website. Subject to that, here are some issues to consider before reaching for AI help.

Automation and accuracy

At the risk of sounding like a complete technophobe, it can be easy to get wrapped up in the novelty of AI. You should however consider whether AI is streamlining your procedure or in reality creating more work for employees. Take for example the transcribing of interviews or disciplinary hearings. Whilst we may now default to using AI to assist us with anything and everything, a dodgy AI-produced transcript can result in hours of manpower wasted validating and amending said transcript, as opposed to simply recording the interview or hearing to refer to later as and when it becomes necessary. This is particularly wasteful where an employee refuses to progress with the procedure until transcripts are confirmed to be accurate.

This is not to say however that there is no use for the automation that AI can provide within the disciplinary procedure. AI tools can be used to flag any potential breaches of company policy which would give rise to a disciplinary procedure – whether this be timekeeping issues, absenteeism or the misuse of company systems.

AI can also be used to support HR managers in following the company’s disciplinary procedure, whether this be step-by-step reminders as to procedure or generating templates for interviews or the various communications required throughout the process.

AI can also review documents and produce summaries – whilst this can be very useful, employers should take great care with AI’s ability to summarise documents, as this can sometimes create more problems than it solves (and encourages individuals not to read through the entirety of important documents!).

Employers should be conscious that they are not pursuing automation at the cost of accuracy, as this can leave a company vulnerable to unfair dismissal claims.

Equality considerations

It is crucial that any AI systems utilised throughout the disciplinary procedure do not lead an employer to fall foul of their duties under the Equality Act 2017. An AI system that is fed biased or discriminatory data will produce biased or discriminatory results, so employers should be wary of the data being used by the AI system.

Where the AI system is trained using previous disciplinary incidents for example, it could potentially reinforce existing bias within the company. Even where an AI system is fed seemingly neutral data however, this does not always guarantee that systemic bias is avoided. Some companies use AI to undertake risk analysis or decision-making.

Introducing AI to your disciplinary procedures

It should be made clear to employees when AI is being used in the disciplinary procedure. Ideally this should be covered in the staff handbook or in a standalone AI policy. Employees should be informed the degree to which AI is being used (i.e. clarifying that AI will not be making the final decisions) and should be given the opportunity to request human review.

The use of AI does not circumvent an employer’s GDPR obligations in respect of employee data so, as stated, open AI tools should not be used. The uploading of data is considered in greater detail in the September issue of the M&P Review.

No two disciplinary procedures are the same, and when people are involved it calls for a delicate balance of subjectivity and objectivity which AI can struggle to achieve. It is therefore always beneficial to view AI output through a common-sense lens to minimise the risk of any unfair dismissal claims arising.

Advocate Lizzie Beard is a member of M&P Legal’s employment team. This article is not legal advice. Always seek specific legal advice on the facts of each particular case.

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