TUC Publishes Draft Employment and Regulations AI Bill

On 18 April 2024, the Artificial Intelligence (Employment and Regulation) Bill (AI Bill) was published by the Trade Union Congress (TUC). Its stated purpose is to regulate the use of AI systems by employers in relation to workers, employees, and jobseekers to protect their rights and interests in the workplace. It also provides for trade union rights in relation to the use of AI systems by employers and is designed to enable the development of safe, secure, and fair AI systems in the employment field.

What is the UK Government’s position on AI regulation? Currently, there are no UK regulations governing AI. In 2022, the UK Government published a white paper entitled, AI regulation: A pro-innovative approach which illustrated that politicians were focused on growing the AI industry and ensuring Britain had the regulatory freedom to be a leader in the field. This is a move away from the EU approach, which has taken a tougher stance via the AI Act. However, recently, the Financial Times reported that the Government has begun drafting legislation that limits LLMs and the general-purpose technology that underpins AI development. In addition, the new legislation will provide that developers must share algorithms with the Government and prove they have undertaken prescribed safety testing. This change in direction is likely to be in response to continuing reports about the damage an unregulated AI industry could cause.

Why has the TUC decided to draft AI legislation? In 2021, the TUC compiled an AI manifesto, TUC: Dignity at work and the AI revolution: A TUC manifesto (25 March 2021, which brought together various legislative and policy recommendations including a statutory duty to consult trade unions in relation to the deployment of high-risk AI and automated decision-making systems in the workplace. Following on from the manifesto, the TUC launched an AI taskforce with the AI Law Consultancy at Cloisters Chambers, to establish new legal protections for employees and employers regarding the use of AI technology. The taskforce comprised of experts in law, technology, politics, HR, and charities, were commissioned to prepare a draft bill to illustrate what a regulatory framework, focused on protecting the rights of employees, workers and jobseekers, could look like. Trade unions were also invited to contribute to the draft legislation. What provisions does the AI Bill contain?

The AI Bill comprises of ten parts: Part One – preliminary – introduces the structure of the Bill. Part Two – core concepts – sets out the core concepts of the Bill such as ‘processing’ ‘artificial intelligence’, and ‘high-risk decision-making’, the latter being a trigger for most of the rights and obligations of the Bill. Part Three – transparency, observability, and explainability – creates positive duties for employers and their agents, including the requirement for a ‘Workplace AI Risk Assessments’ (WAIRA) when undertaking high-risk decision-making. Part Four - prohibition on detrimental use of emotion recognition technology - Prohibits the use of emotion recognition technology in high-risk decision-making that may be detrimental to a worker, employee or jobseeker.

Part Five– Prohibition on discrimination – amends existing rights under the Equality Act 2010 to tailor them to the use of AI in relation to employees, workers, and jobseekers. For example, employers will need to prove any AI systems they use are not discriminatory. Part Six – health and wellbeing – an amendment to the Employment Relations Act 1996 to provide a statutory right to disconnect.

Part Seven – dismissal – makes it automatically unfair dismissal to dismiss an employee through unfair reliance on high-risk decision-making or as a punishment because an employee has exercised their right to disconnect. Part Eight – trade unions – provides for fair use of data by employers concerning the sharing of members data with the relevant trade union. Collective consultation will also be required if the employer wants to undertake high-risk decision making.

Part Nine – auditing and procedural safeguards - sets out the auditing of artificial intelligence systems for discrimination, and the standards which an employer must meet to rely on the auditing defence set out in Part Five.

Part Ten - Regulators and bodies in the employment field and AI - sets out regulatory obligations concerning artificial intelligence and details the principles that key regulators (identified within Schedule 3) must apply in any context concerning employment and the deployment of artificial intelligence systems.

Many of the AI Bill’s provisions are backed up by the right of the employee or worker to bring an Employment Tribunal claim.

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