EMPLOYMENT LAW UPDATE

Released On 14th Nov 2022

FUTURES MADE OF VIRTUAL INSANITY?

A recent headline in the BBC said that job interviews in the future could be done by AI. Rather than being interviewed in person by a human being behind a desk or even via a Zoom call, you could be interviewed for a job by a computer. What do you think of this, virtual reality or virtual insanity?!

Thinking this is the stuff of a future dystopian novel, I researched this topic only to find that these AI interviews are already taking place in the UK today. The process involves a job candidate, or their avatar, being interviewed by a virtual face on a computer screen or your mobile phone. The candidate videos themselves answering pre-set questions with a time limit for each answer. The video is then submitted to the developer platform which processes the data of the candidate assessing speech e.g. key words, visuals e.g. smiles, and vocals e.g. the tone of their voice. The platform then produces a report, with a summary of the job candidate’s performance, to the employer. Alternatively, the recordings are viewed by the employer themselves.

There are arguments for and against AI based interviews. Even today, there are fantastic candidates, not getting the job because the interviewer has gender bias, age bias, racial bias or simply does not like the way the candidate is dressed. You must be mindful of the fact that the Equality Act 2010 protects job applicants as well as employees. You must not treat a job applicant worse than another job applicant because of a protected characteristic such as sex, age or race. You could end up facing a tribunal claim from someone you never even employed if they feel that you discriminated against them in the recruitment process. The idea is that AI removes this element of discrimination or bias to find the candidate that is simply the best person for the role.

On the flip side of this, a study by Cambridge University found that whilst it may remove the unconscious human bias, the programming itself may discriminate. They found that the programme they analysed favoured people sitting in front of bookcases or judged people who wore glasses as less conscientious! The programmers develop algorithms to spot personality traits such as openness, agreeableness and conscientiousness. For example, if someone tilts their head they may be deemed as more agreeable or the tone of their voice when they say something may show that they are more open. Judging someone as agreeable because they tilt their head sounds slightly ludicrous, although I do not claim to be any sort of expert on this!

In addition, we still know very little about how AI interviews affects candidates themselves, it is therefore difficult for employers to know how these technologies will impact their recruitment pool and potentially alienate promising candidates. Candidates who have been subject to an AI interview have also reported feeling dehumanised, exhausted and confused by these automated systems.

For now, what steps can you take to reduce unconscious bias without resorting to using AI?

1. Start at the beginning with job descriptions. Your job description is a candidate’s first look at your company’s ethos and culture. Remove adjectives closely associated with a particular gender or any gender specific words or phrases. Advertise widely so that you attract a broad range of applicants. You don’t want to put off a diverse range of candidates before you’ve even started (something which they AI technology may be proving to do).

2. When shortlisting your candidates for interview, again be careful not to reject applications based on a person’s protected characteristic. For example, you must be careful not exclude people simply because they have had a career break, or you could be indirectly discriminating against women who have taken a break to have a family. It is good practice to keep written records of your reasons for short-listing candidates rather than others and to have a second person review the application with a view to any unconscious bias.

3. The interview itself is perhaps the most important stage. Again, it is vital not to ask about a person’s protected characteristics. A good way of avoiding any potentially inappropriate questions is to prepare a list of questions in advance that you will ask all candidates focusing on their experience, skills and qualities necessary to perform the job.

4. There is no need to ask about dates of birth unless there is a minimum age to carry out the job or to ask about where a candidate is from. It is fine however to ask if they are legally able to work in the UK. You should also not ask about marital status or if they have or are planning to have children or what their childcare arrangements are. All of this may sound obvious but some areas are quite grey so the pre-prepared questions are key to ensure you do not step into any potentially discriminatory territory.

5. For disability, you can only ask questions if it significantly impacts on their ability to do the job and you want to find out what reasonable adjustments you could make to the role to assist them. Do not make assumptions about their ability to do the job or ask personal questions about their disability.

6. Having two people conduct the interview is a good idea to avoid unconscious bias and always keep good records of any interview notes that you can later rely on if necessary.

Provided you stick to the above and your reason for hiring someone is based their ability to do the job then you should be able to find the best person for the job without resorting to using a robot to avoid unconscious human bias.