The implications of mobile working and artificial intelligence for works constitution law

1. What is artificial intelligence?

There is no legal definition for the term “artificial intelligence” (“AI”), so that disputes over whether AI is being applied are inevitable.

The German Federal Government’s Artificial Intelligence Strategy (www.ki-strategie-deutschland.de) focuses on “weak” AI, which is understood to mean artificial intelligence that “solves concrete application problems based on methods from mathematics and computer science, with the developed systems being capable of self-optimisation. To this end, aspects of human intelligence are also modelled and formally described or systems designed to simulate and support human thinking.” By contrast, “strong” AI is understood to mean systems that have the same intellectual skills as human beings, or even superior skills.

2. Use of AI

AI is increasingly being implemented in companies, in particular in the field of HR. Areas where AI can be applied include, for example, job application procedures/assessment centres, employee performance evaluations and internal training courses with tests to verify the progress made. Employers hope that this will lead to more accurate personnel decisions and more accurate resource utilisation, amongst other things. Outside HR, AI is also increasingly finding its way into our lives, for example, in assisted surgery, analytical image recognition or autonomous driving.

3. Works council’s right to participate

In connection with the use of AI, works councils may now call on external expertise to understand and evaluate complex information technology issues and participate in shaping the relevant context. Section 80 (3) sentence 2 German Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”) now contains a new provision to the effect that the involvement of an expert in connection with the introduction or application of AI is considered to be necessary for the purposes of Section 80 (3) sentence 1 German Works Constitution Act.

This means that when introducing new software solutions, using new machinery or implementing digitalisation projects, the employer can now no longer prevent the works council from obtaining an expert’s advice by claiming that this is unnecessary.

The German legislator ultimately created Section 80 (3) sentence 2 German Works Constitution Act in the hope that involving the works council in the introduction and application of AI systems will lead to more confidence and acceptance on the part of employees.

4. Influence of AI on work processes and works council’s say in the establishment of selection guidelines

In addition, AI is now also taken into account in Sections 90 (1) no 3, 95 German Works Constitution Act.

The German legislator believes that employees might be influenced in their work procedures and processes by the use of AI. Section 90 (1) no. 3 German Works Constitution Act therefore provides that the employer must timely notify the works council of any plans to use AI, in all areas of work.

The addition in Section 95 (2a) German Works Constitution Act clarifies that the works council has a say, in particular in the establishment of selection guidelines for the hiring, transfer, regrouping and dismissal of employees, even in cases where the selection guidelines are generated independently by an AI application (use of so-called algorithmic decision-making systems (ADM systems)).