Written Evidence by the Trades Union Congress (HRW0055)
The Trades Union Congress (TUC) is the voice of Britain at work. We represent more than 5.5. million working people in 48 unions across the economy. We campaign for more and better jobs and a better working life for everyone, and we support trade unions to grow and thrive.
The use of artificial intelligence is driving significant change in relation to monitoring and surveillance at work. Whereas in the past, surveillance may have taken place by a human manager keeping an eye on staff, and then perhaps by camera, surveillance technology has become increasingly sophisticated.
In addition, surveillance of workers is on the rise. There has been a notable increase in workers reporting surveillance and monitoring in the past few years, with 60 per cent of workers reporting an experience of this in 2021, compared to 53 per cent in 2020 (Britain Thinks online survey of 2209 workers in England and Wales December 2021).
Surveillance of workers often takes place as part of an algorithmic management system. This means that surveillance technologies are used to collect data about workers which is then algorithmically processed, resulting in an automatically generated decision about a worker, or other outcomes to drive worker behaviour.
Through use of technology, surveillance of workers has transformed into the collection and processing of huge amounts of data. Much of this data is personal and detailed information about individuals, ranging from precise location, to analysis of emotion or physical movements.
In the TUC’s research report, Technology Managing People – the Worker Experience, we highlight that 27 per cent of workers surveyed had their communication screened, 13 per cent had experienced desktop monitoring and 8 per cent were aware of social media screening. We also explain how surveillance has increased following the pandemic and more homeworking.
Due to the portable and potentially highly invasive nature of many of the surveillance devices now used at work (for example, location trackers, monitoring of activities on laptops and technology used to analyse emotion or sleep), there is an increased danger of surveillance activities crossing physical work/home boundaries, as well as personal boundaries relating to the sanctity of emotion, feeling and private thought.
This has significant implications for the Article 8 right to privacy and family life.
In addition, there are potential equalities implications of surveillance at work.
Britain Thinks polling commissioned by us in December 2021 revealed that in comparison with white workers, a higher percentage of Black, Asian and Minority Ethnic (BAME) workers, as well as disabled workers, experience monitoring and surveillance at work.
BAME and disabled workers were more likely to report being the subject of monitoring and surveillance. 33 per cent of BAME workers said all their activities were monitored compared to 19 per cent of white workers. 39 per cent of those with a severe disability or condition and 24 per cent of those with a severe/moderate disability/condition reported all their activities being monitored compared to 21 per cent of those with no disability.
BAME workers were also far more likely to report an increase in surveillance over the pandemic, as were disabled workers.
BAME workers were also more likely to report being subject to facial recognition technology to monitor mood and expression (5 per cent) as opposed to white workers (1 per cent).
Disabled workers were more likely to report use of FRT to monitor mood and expression (7 per cent with a severe disability, 2 per cent with a severe/moderate disability, 2 per cent no disability).
BAME workers were twice as likely to report “monitoring and recording of staff's exact location and movements within the workplace using handheld or wearable devices”; 8 per cent of BAME workers as opposed to 4 per cent of white workers.
Further, where surveillance technology is used as part of an algorithmic management system, there is a danger of discriminatory outcomes if algorithms are entrenching existing inequalities in the data.
The TUC commissioned a legal report from Robin Allen KC and Dee Masters (Technology Managing People- the Legal Implications www.tuc.org/AIManifesto ) in which, amongst other areas of employment law, they explore the privacy and equalities implications of artificial intelligence at work.
The report considers how surveillance technologies used in different scenarios may fall under Article 8 of the ECHR (pages 66-69) .
In relation to privacy, the report concluded:
“Article 8 ECHR is adequate to protect the privacy of employees and workers from intrusive forms of AI and ADM. However, at present there is inadequate legally binding guidance to employers explaining when Article 8 rights are infringed by the use of AI-powered technology and how, practically speaking the Article 8 balancing exercise is to be resolved. Without such guidance employers will not fully understand their obligations, nor will employees be able to hold the line against inappropriate incursions into their right to a private life.
“The increased use of technology is encroaching more on workers’ lives, leading to a slow erosion of the distinction between work and private time due to the ease with which communication can take place. There is no existing legal tool in the UK that creates a positive right to enforce boundaries around communication during the personal life of an employee or worker, which may otherwise be eroded by technology.”
In the TUC’s AI Manifesto, Dignity at Work and the AI Revolution, we assert that there should be statutory guidance for employers on the interplay between Article 8 and key data protection concepts in the UK GDPR. In particular, we seek clarification in guidance as to the protection afforded by Article 8 when subject to monitoring, profiling and surveillance by AI-powered tools and ADM, in particular if they are working from home, and when these tools are being used to make judgments about workers.
We also propose a statutory right to disconnect from digital devices.
In relation to discrimination, our legal report concluded:
“AI, ADM and profiling can discriminate. The existing legal framework giving effect to the principle of non-discrimination in the workplace is in principle capable of tackling discriminatory uses of AI and ADM but can only be used effectively where transparency is guaranteed.
“There are difficulties with identifying when and how and by whom discrimination is introduced within the “value chain” of actors who have created an AI tool, which in turn can make it difficult for workers and employees to enforce rights to non-discrimination”.
In light of this, we make a series of proposals in our manifesto to ensure that workers can address discriminatory outcomes produced by algorithmic management systems. These proposals include the following:
At the heart of our AI Manifesto is the importance of worker voice, consultation and collective bargaining. We propose a statutory duty of consultation of trade unions and workers before the introduction of new technologies, and highlight the vital importance of workers being consulted on the development, procurement and application of algorithmic systems, as well as review and evaluation of these systems.
All of the reports referred to in this statement can be found here: https://www.tuc.org.uk/AImanifesto.
12/03/2023