How employers can use Artificial Intelligence in data protection era

Artificial Intelligence (AI) is increasingly being used and governments and businesses world-wide are exploring ways of integrating it.

The digital age dictates that everyone, including employers, must be concerned about the opportunities and risks created by the emerging technologies. 

AI solutions are increasingly being used by employers in recruitment, performance management, routine office functions, among others.

However, employer should ensure that deployment of AI solutions in the workplace complies with employment laws.

One of the key areas of compliance is the handling of personal data. Since AI is dependent on the use of data, an employer using it must be conscious of the likely data protection issues.

For instance, when an employer uses an AI solution to record images and analyse the emotions and behaviour of candidates during an interview, the consent of each candidate would be required and the employer must ensure that there is no excessive or unnecessary infringement of the right to privacy.

The restrictions on automated individual decision-making are prescribed in the Data Protection Act, 2019 (DPA) and its regulations.

The law also requires a data controller or data processor to prevent or minimise errors by using appropriate statistical, technical and organisational procedures and measures.

Both the Employment Act, 2007 and the DPA require fairness in employment and labour practices.

The principles of fairness include granting the data subjects the highest degree of autonomy with respect to control over their personal data, elimination of any discrimination against a data subject and incorporating human intervention to minimise biases that automated decision-making processes may create.

Legal issues may also arise from the application of work injury compensation laws where injuries result from employees’ interaction with AI-powered machines and systems.

The use of AI may also mean that an employer must reduce the workforce through redundancy, which is a highly regulated and costly procedure under Kenyan law.

One of the ways to prepare well for handling some of the issues is relooking the HR policies and refining them, if necessary.

It is also necessary to train staff in corporate policies to address gaps in technical skills.

There are no universally accepted laws yet specifically regulating the use of AI but countries have own policies.

Kenyan businesses ought to think through how AI impacts or will impact them and take preparatory steps.