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What do we need to consider if we are planning to make solely automated decisions with legal or similar effect?
The UK GDPR has rules (under Article 22) to protect workers if you are carrying out solely automated decision-making that has legal or similarly significant effects on them.
You can only carry out this type of decision-making where the decision is:
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• necessary for the entry into or performance of a contract; • authorised by law that applies to you if you have a statutory or common law obligation to do something, and automated decision making is the most appropriate way to achieve your purpose; or • based on the individual’s explicit consent. The UK GDPR says that consent must be a freely given, specific, informed and unambiguous affirmative indication. This is the most likely gateway for monitoring workers but may be difficult due to the power imbalance between workers and employers.
You must offer an alternative to workers who do not want to give consent which does not detriment them.
Example
An organisation pays workers based entirely on automated monitoring of their productivity. This decision is solely automated and has a significant effect, since it affects how much a worker is paid. Therefore, the additional rules under Article 22 will apply.
Example
A courier service uses an automated vehicle tracking device to determine if its workers are making deliveries on time and to the correct address. A worker is issued a warning about failing to make deliveries on time. The warning was based on complaints received from customers about not receiving their orders. These complaints were corroborated following a courier service’s HR manager review of the vehicle’s tracking device data showing that the vehicle only made a small proportion of journeys it was expected to make.
In this example, additional rules under Article 22 will not apply as, although the warning was issued on the basis of the data collected by the automated tracking device, the decision to issue the warning was taken by the courier service’s HR manager following a review of the data.
