This was written by Amy Bird, Associate for CMS Cameron McKenna LLP.
Developments in technology are increasingly opening up the way that employers design their workforce. From the ‘recruitment perk’ of egg-freezing to building robot bosses, to IT-supported flexible working for all, this is a tech-led workplace revolution. But if this ignores basic human characteristics, it may be at the cost of ‘dehumanising’ the work place – and give rise to claims. So how should HR professionals avoid legal pitfalls?
Robot bosses
Rather than the typical line manager, a series of algorithms and equipment would monitor employees. But what about appraisals, disciplinary procedures, grievances, and nipping potential issues such as stress in the bud? HR professionals will need to develop a hybrid management system. The robot manager might be programmed to spot behaviours that are a sign of trouble, perhaps even being programmed with specific information about individuals’ disabilities or caring responsibilities that might explain behaviours. The robot manager could then escalate issues to a human manager, who would have the ability to exercise discretion. Otherwise, it is easy to imagine failure to take these softer, human elements into account could lead to claims for breach of trust and confidence, discrimination or negligence.
HR professionals will also need to consider how to deal sensitively with a boss who is going to be replaced by a robot. In a sense, this is no different from earlier mechanisation. But it will feel different. HR professionals will need to ensure they give the potentially redundant bosses a clear explanation of what the new robot will be doing, and its level of sophistication, so that redundant employees can gain an understanding that might stave off unfair dismissal claims.
Frozen eggs
Some companies are now offering egg freezing as a perk for employees. This is suggested to offer female employees – and potentially their partners – the chance to put biological clocks on hold while they pursue a project or wider career goal. But the proportions of successful conception from frozen eggs are far short of 100%. HR professionals will need to make sure that clear boundaries are set up between merely offering the service, and making any guarantee as to its success.
Policies will also need to make it clear that a decision to freeze eggs in order to focus on a project will not create some kind of right to promotion – otherwise there could be constructive unfair dismissal claims by egg-freezing employees who are not promoted, or discrimination claims from women who take maternity leave, or from men (who can’t make a symbol of their commitment in that way). They will also need to train managers (robots or human) that any kind of pressure on women to freeze their eggs is unacceptable, and would expose the company to risk of claims, including harassment. Provisions must also be put in place to safeguard the confidentiality of the decision to freeze eggs.
Big data searches in recruitment
Rather than relying on a traditional CV and job interview (or even a media or social media search), some companies are now using automated analysis of ‘big data’ to sift potential recruits – so for instance, their pattern of internet use and how they respond to on-line choices. The behaviour that throws up is then used to assess whether the potential recruit is the right fit for the workplace.
As with all recruitment procedures, the scoring criteria should make clear how the information was assessed, and what conclusions will be drawn from it. Care should be taken about digging down too far into the data to avoid falling foul of privacy and discrimination protections. If the hire does not work out, despite the conclusions reached from the big data, it will not be as straightforward as dismissing someone for lying on their CV. Saying ‘our algorithms suggested you would be one thing, but you are actually another’ will not cut it. Performance and fit in the role will still need to be assessed and justified in the usual, human, way.
Flexible working and shared parental leave
On the flip-side of this apparent dehumanisation is the fact that anyone may now apply for flexible working, rather than just those with caring responsibilities. This takes on board the very human desire to achieve balance and reduce stress. But it, too, is very tech based, as sophisticated IT is what allows people to work remotely. There is also an increased acknowledgement that working outside the office is more productive. Perhaps the office is no longer the place for humans, because we have realised they actually function better in other spaces. And what could be more human than shared parental leave, allowing both parents to share responsibilities?
The challenge for HR here is not just about devising and implementing policies. It is about ensuring that a two-tier workforce, or a perception of one, doesn’t develop – dehumanised tech super-workers on the one hand, who are algorithmically perfect and will freeze their eggs at the first opportunity, and on the other hand those who are perceived as ‘giving in’ to traditional conception and wanting time out of the office to pursue non-work goals. That is a workplace culture and education issue. Tech is a very valuable tool. But being human is also a very valuable trait. Anything that penalises people for displaying it is likely both to lead to claims and to a dissatisfied – and therefore less productive – work force.
