09.12.2021

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

“Mobile working” and “artificial intelligence” have been hot topics for some time. Now, however, these terms have arrived not only in everyday business operations, but also in works constitution law. What does this mean for operational procedures and the work of works councils?

Works council’s right to participate in matters regarding artificial intelligence

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)).

New co-determination right regarding mobile working under Section 87 (1) no. 14 German Works Constitution Act

With the introduction of Section 87 (1) no. 14 German Works Constitution Act, a new co-determination right has been created. According to said provision, the works council has a right of co-determination in the structuring of mobile working using information and communication technology.

The term “mobile working”

Mobile working is when employees perform the work owed regularly or on certain occasions outside the workplace, using information and communication technology.  In Germany, this is usually understood to mean “working from home”. By contrast, if employees are required to perform their work on the move, rather than at a specific location, due to the nature of their work (for example, lorry drivers, fitters or sales staff), this does not constitute mobile working.

Scope of the co-determination right

According to the explanatory memorandum accompanying the Act, the co-determination right relates exclusively to the question of “how” things are done. This means that the works council has a say in the structuring of mobile working but not on the question of whether mobile working should be introduced. Consequently, the works council cannot force the employer to introduce mobile working. Aspects of “how” the mobile working is structured include, for example, the working hours for mobile working, the place of performance of the work, availability hours, the handling of work equipment provided and, in particular, data protection and safety aspects.

Section 87 (1) no. 14 German Works Constitution Act is ultimately a catch-all provision, as co-determination rights in connection with mobile working are already enshrined in Section 87 (1) no. 2 (working hours), no. 6 (use of technical devices) and no. 7 (health and safety at work) German Works Constitution Act, which continue to apply unchanged.

It therefore remains to be seen to what extent the new co-determination provision will be used in practice to fill the regulatory gaps, if any, and to what extent it will be considered to be more than just a catch-all provision.

Author
Dr Eva Maria K. Rütz, LL.M.

Dr Eva Maria K. Rütz, LL.M.
Partner
Dusseldorf, Cologne
eva.ruetz@luther-lawfirm.com
+49 211 5660 27048

Katharina Gorontzi, LL.M.

Katharina Gorontzi, LL.M.
Senior Associate
Dusseldorf
katharina.gorontzi@luther-lawfirm.com
+49 211 5660 25038