EHRC publishes new anti-discrimination AI guidance

The Equality and Human Rights Commission has published new guidance on the use of artificial intelligence by public bodies. It comes in response to emerging evidence that bias built into algorithms can lead to less favourable treatment of people with protected characteristics such as race and sex. 

The guidance is not specific to the workplace but it will be useful for any employer who is using, or considering using, AI for their workforce applications, particularly in recruitment. Also, whilst it’s aimed at the public sector, it will nonetheless be helpful to employers in the private sector too. 

The guidance is good, in our view, and will help HR. It gives a lot of practical examples of how AI systems may be causing discriminatory outcomes, and there’s a helpful checklist that gives suggestions on how to demonstrate that equality of treatment has been considered throughout the AI decision-making process. 

The ICO is also looking at this and, in particular, at the potential discriminatory impact of AI in recruitment. Back in July, as Personnel Today reported, John Edwards, the information commissioner, announced plans for an inquiry into the automated systems that screen job candidates, including looking at employers’ evaluation techniques and the AI software they use. He said that’s something the ICO will be looking at over the next 3 years and that, in due course, he will be issuing fresh guidance for AI developers and employers. So we now have this new guidance from the Equality and Human Rights Commissions, with ICO guidance on its way at some point.

None of this has come as a surprise. Back in August last year Anne Sammon was flagging this in her Out-Law article ‘UK employers can expect wave of new data and AI guidance’, explaining how both regulators are concerned and want to raise awareness about the potential discriminatory impact of using AI.

Earlier Anne joined me by video-link to discuss this, and understand what HR can do to minimise the risks: 

Anne Sammon “I think one of the really challenging things about artificial intelligence is its complexity and it's very easy to go into situations not fully understanding how the technology works and it’s so important that employers really do have a good understanding of what the technology is actually doing and how it's working so that they can help to identify if there are potential discrimination issues. Without that sort of knowledge of how the product works is very difficult to take mitigating steps to alleviate any disadvantage that the technology might be causing.”

Joe Glavina: “In your Out-Law article you say that before implementing AI tool it’s vital employers do some due diligence. What do you mean by that?”

Anne Sammon: “So I think there are two steps. The first step is the kind of procurement of that artificial intelligence tool and it's about making sure that the HR teams have the confidence to ask the right questions and don't allow themselves to be bamboozled by technological language. So, I think that's the first piece, asking questions so that you understand how it works and what it does is a key part of this. Then there's a separate piece about how you communicate that to the individuals who are subject to that technology. So, for example, if it's a recruitment exercise, I would expect HR teams to be talking to candidates about the technology that's being used, how and how it's being used, so that if there were questions raised by those candidates, in terms of potential disadvantage, the HR teams can respond accordingly.”

Joe Glavina: “You also mention in your article that there are ethical issues around the use of AI. Why should HR take notice of that?

Anne Sammon: “I think that that there is the natural kind of human tendency to be interested in those issues. I also think that, from an HR perspective, having an awareness of what those issues are is quite important so that if employees, or potential recruits, challenge the use of AI on those bases the HR team are equipped to be able to provide reasoned, proper, responses rather than feeling kind of hijacked by those questions.”

Anne’s article on this explores all of that in more detail, if you’re interested in that. It is called ‘UK employers can expect wave of new data and AI guidance’ and is available from the Out-Law website. We have also put a link the Commission’s new guidance.

LINKS
- Link to EHRC guidance
- Link to Out-Law article: ‘UK employers can expect wave of new data and AI guidance’