How can employers avoid legal risks when using AI in recruitment?

Recent reports have shown an increasing use of artificial intelligence (AI) and other automated decision-making (ADM) in recruitment processes, and many employers will be inclined to digitalise their recruitment and selection processes. However, the use of these technologies is not without risk. Employers should tread carefully when purchasing and implementing such systems. The Information Commissioner’s Office (ICO) has published an update on the work it has carried out in relation to the fair and responsible use of automation in recruitment, and it is therefore an issue employers and HR teams need to thoroughly consider and ensure they heed the ICO’s warnings.

In this article, Audrey Williams examines the key risks and safeguards which organisations must consider and outlines the developments likely to arise in the future.

Recruitment assessment systems

These can range from the automatic processing and filtering of CVs and applications (which can be particularly useful where high volumes are received) to virtual interviews and augmented or virtual reality testing and assessments. As more is done via virtual meetings, it might be assumed that candidates will be comfortable and confident using automated or video interviews. The advantages here include freeing up resources and interview panels where the technology is used to “interview” a long list of candidates and select the short list.

Legal risks

With all such technology, employers must take steps to minimise the risk of bias and discrimination that may arise, as well as addressing data protection obligations.

To a certain extent, bias can be addressed when selecting the provider of the technology by ensuring the provider’s data and algorithms have been stress-tested for bias and discrimination. An employer will want to ensure that the provider has evidence to demonstrate that there is no risk of unfair bias, for example against candidates due to gender, race, or age.

In addition to the risks of discrimination claims, particular concerns arise with disability discrimination. Given the obligation to make reasonable adjustments to remove and address disadvantage under the Equality Act 2010, some mechanisms must exist to enable disabled candidates to flag barriers which they might face in undertaking an automated video interview or other automated processes. This should enable discussion about any exemptions or adjustments needed for candidates.

• For example, candidates may have visual or hearing impairments, be on the autism spectrum, or have a facial disfigurement or may have suffered a stroke, Bell’s palsy, or facial paralysis. Due to the way in which the systems are designed, such systems read or assess a candidate’s facial expression or response, the level of eye contact, voice tone, and language. Disadvantages can arise here and must be addressed.
• Language and tone of voice can also be more difficult for some whose first language is not English, increasing the risk of racial bias and discrimination or challenge those with speech impediments (again disability risks arise).

Finally, as with all technology, it will be necessary to ensure that data protection obligations have been met to ensure there is legitimate processing, protection of rights to privacy, and, increasingly, being able to explain and justify the results.

What practical steps should employers take?

• Employers should challenge the validity of the assessment process and ask about the data used to build and design the technology. What analysis has been done to eliminate or reduce the risk of bias and discrimination?
• Employees should also ensure that the test results have been assessed for bias and question how current these impact assessments are.
• When adopting the technology, employers should ensure the process allows for human intervention: if a candidate needs adjustments because of a disability, make it clear with whom and how they should make contact to discuss what might be required.
• If your organisation introduces new technology, ensure its use is subject to ongoing impact assessments to identify early any change in the recruitment results as part of your ongoing diversity and inclusion analysis.
• Implement measures to minimise the risks around bias and discrimination so that, in the event of a legal challenge, a reasonable-steps defence might be used. However, to do this, these measures must be maintained, kept under review, and updated.

This is an area where equality impact assessments and data protection impact assessments should go hand in hand in the sourcing, adoption, and usage of these technologies, as well as monitoring outcomes.

The use of AI is becoming increasingly popular. Prior to integrating it into existing recruitment models, employers should take full precautions to ensure that the technology does not implement discriminatory practices. As this is an area that is expanding drastically, being informed on the implementation and regulation of the technology is vital.

Finally, careful thought should be given to how candidates might engage with the organisation and feel valued particularly when AI and ADM or other automated processes are adopted and in use. Careful thought is required to address the concerns that, without human intervention or involvement in the process, candidates feel alienated and unsupported. Setting expectations and outlining the process at the outset may help manage such concerns.

Additional safeguards are required by employers, including careful analysis of recruitment outcomes where such tools are used so that the results are monitored and can be shown to meet organisational requirements and equality obligations.

If you have any questions on the use of AI/ADM in recruitment, please contact Audrey Williams.