Artificial intelligence is rapidly evolving and being widely adopted within the workplace. An emerging trend that we are observing is that employees are using it to raise formal workplace grievances and in litigating their claims.
AI tools make it easier and faster for employees to draft detailed complaints about workplace issues. As a result, employers appear to be increasingly faced with grievances that are longer, more complex, and sometimes contain significant inaccuracies, particularly in the interpretation of legal principles and even in the factual details.
Nonetheless, employers remain obligated to follow the ACAS Code of Practice, and to address each aspect of the grievance thoroughly and appropriately. They must explain the outcome to the employee, including the evidence considered and the rationale behind their findings.
However, those responsible for handling these grievances should generally not use AI to respond due to data protection and accuracy concerns, although it might be appropriate to enlist the help of AI for certain aspects of an investigation, for example to collate and summarise evidence.
A reasonable investigation
Employers must ensure they conduct a reasonable investigation, which includes speaking directly with individuals named in the grievance. This raises the question: what constitutes a ’reasonable investigation’ when AI-generated grievances are becoming more common?
This will no doubt be something dealt with by employment tribunals in future litigation, but as a starting point it will probably be necessary to clarify the exact nature of the employee’s grievance – particularly if you suspect the grievance they have submitted is AI generated and perhaps does not accurately reflect the factual circumstances of the complaint.
This is not unique to AI generated grievances. A face-to-face meeting is a requirement under the Acas Code and will help in establishing the exact nature of the individual’s grievance at the outset, and the terms of reference for the investigation, without the added interference of AI.
AI in litigation
Claimants are also increasingly using AI to assist them with litigating their claim, without incurring the costs of obtaining legal advice. In our experience, this can result (intentionally or not) in more extensive communications that drive up legal costs for employers and potentially overwhelming an already-strained system.
Moreover, AI tools are known to generate fictitious cases and discredit the reliability of their outputs. This has been reported in relation to a recent intellectual property case and other claims. Employees relying on AI for legal advice risk receiving inaccurate guidance, which could adversely impact their claims.
For example, claimants could miss critical deadlines if AI provides incorrect information, such as wrongly interpreting the “three months minus one day” rule for bringing a claim or even potentially prompting claimants to bring certain claims over which the tribunal lacks jurisdiction.
Tribunal claims are expected to increase due to the Government’s proposed changes under the Employment Rights Bill (including a day one right to claim unfair dismissal). The use of AI in this context could further contribute to the volume of claims and increase the pressure on employment tribunals, potentially overwhelming an already strained system.
This evolving trend calls for careful consideration of how AI is integrated into employment law processes and its implications for both employees and employers.
What can you do?
Employers should consider adopting the following measures:
- Introducing an AI policy. This should provide clear guidance on the legitimate use of AI by employees in carrying out their duties, including warnings on the limitations of AI and the need to check the accuracy of any work undertaken with AI assistance.
- Setting expectations of grievances. Consider setting parameters for the submission of formal complaints by employees, specifying that these must be factual, reflect personal experiences and not rely on solely AI-generated narrative.
- Ensuring that HR teams and line managers are fully trained on compliance with the Acas Code and how to handle complex or AI-influenced grievances, including identifying and dealing with AI-generated content and the importance of fully documenting the grievance process.
- Including a reference in grievance and disciplinary policies to the potential consequences if an employee raises repetitive, frivolous, vexatious, or bad-faith grievances, and explain the circumstances when an employer may refuse to investigate further. Employers should always exercise caution, however, before refusing to investigate a grievance or disciplining an employee for raising it.
AI is having its moment in the spotlight but is certainly showing no signs of fading away. For many people it represents a transformative way of working. Employers will need to rapidly adapt in order to fully harness its enormous potential but must also be prepared to deal with the unintended consequences of AI while at the same time ensuring compliance with their legal responsibilities.
Rebecca She joined Birketts in July 2021, bringing a wealth of knowledge and expertise in employment law. She loves advising on complex Employment Tribunal claims and has expertise in assisting clients in managing and defending claims in both the Employment Tribunal and the Employment Appeal Tribunal.
She is particularly skilled in handling intricate legal areas such as holiday pay issues, TUPE, and the Working Time Regulations 1998. Additionally, Rebecca assists with collective redundancy exercises, restructures, and employer-led bulk COT3 agreements.
Rebecca provides comprehensive advice to employers on a wide range of contentious and non-contentious issues. She offers strategic, tailored solutions, from drafting employment contracts to managing complex disputes. Whether for a small start-up or a large corporation, Rebecca provides personalised solutions to protect the business interests and minimise legal risks. Her experience with clients who recognise trade unions gives her valuable insight into the complexities of unionised workplaces.
