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Insights AI systems in the employment relationship – can the works council always have a say?

AI systems in the employment relationship – can the works council always have a say?

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​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​​published on 5 April 2024 | reading time approx. 3 minutes

  

The implementation or use of intelligent technical systems, including generative artificial intelligence (“AI”), is currently on the minds of many employers. After all, such systems can make everyday work much easier. The best known is probably the Large Language Model (“LLM”) from the company OpenAI, ChatGPT. You enter a prompt, i.e., a request for “technical action”, and receive a computer-generated response of astonishing quality within a very short time. But is the employer allowed to introduce the use of AI-based systems “just like that” or does the works council also have a say here as part of its co-determination rights?



The Hamburg Labor Court (Arbeitsgericht Hamburg) dealt with this question in its decision of 16 January 2024 – 24 BVGa 1/24. This article outlines the content of the decision and identifies some aspects of co-determination law in the context of the introduction and use of AI-based systems in employment relationships.
  

Starting point: Permission to use ChatGPT via browser

The aforementioned proceedings were based on the question of how far the right of co-determination pursuant to Section 87 Works Constitution Act (Betriebsverfassungsgesetz – “BetrVG”) actually extends.

Specifically, a medical technology company intended to (re)enable internet access to ChatGPT on its systems to support its employees. The AI guidelines and handbooks issued by the employer without the involvement of the group works council stipulated that employees would be permitted to use ChatGPT via the company's web browser using privately created accounts. Neither ChatGPT nor other generative AI systems were installed on the company's own computer systems. As a result, employees should simply be allowed to use ChatGPT through private accounts via the company's web browser.

The works council objected to this and, as part of interim legal protection proceedings, requested that the employer prohibit its employees from using ChatGPT and other artificial intelligence systems. The works council considered the employer's conduct to violate its co-determination rights pursuant to Sec. 87 Para. 1 BetrVG and cited, among other things, data protection concerns, the potential impact on orderly conduct and possible psychological stress for employees.
 

Labor Court Hamburg: No monitoring by the employer in case of mere usage permission and use via browser

The Labor Court Hamburg denied a violation of the works council's right of co-determination pursuant to Sec. 87 Para. 1 No. 6 BetrVG.

According to this standard, the works council only has a right of co-determination in the use of technical equipment if it is intended to monitor the behavior or performance of employees. It is true that the browser used by the employees to log in records their surfing behavior, i.e. inevitably also the use of ChatGPT, and thus constitutes such a technical device. However, the characteristic of monitoring by the employer is missing.

“Monitoring” within the meaning of Sec. 87 Para. 1 No. 6 BetrVG means a process by which information about the behavior or performance of employees is collected by the employer and – at least as a rule – recorded in order to make it accessible for later perception. To this end, the information must be collected and documented in a technical manner so that it remains available for at least a certain period of time and can be used by the employer. The monitoring must be carried out directly by the technical equipment itself in the sense of independent and automatic data collection, storage and/or processing.

It is true that the browser, as a technical device, regularly recorded the use of ChatGPT and thus the employees' performance and behavioral information. However, this recording is not a special feature in the context of the use of ChatGPT, but results from the functional possibilities of the browser, which saves the user's surfing history.

As the employees would have to create a private account in the present case and would therefore also have to bear any costs incurred themselves, the employer would not receive any information on the specific use (when, how or which request) by the employees. Even if ChatGPT were to record this data, this would be irrelevant, as there would be no monitoring pressure from the employer that would trigger a right of co-determination in accordance with Sec. 87 Para.1 No. 6 BetrVG.

Since a browser as a “tool for accessing the Internet” almost always records the websites visited and the corresponding URL (“Uniform Resource Locator”), this subsumption seems consistent.

The Labor Court Hamburg also did not see any other co-determination rights of the works council violated.

With regard to the use of browsers, the works council had already exercised its existing right of co-determination when concluding a group works agreement in this regard.

Likewise, the usage specifications in the form of the guidelines and handbooks did not violate the works council's right of co-determination pursuant to Sec. 87 Para. 1 No. 1 BetrVG, as this was a matter of the manner of work performance. Subject to co-determination according to Sec. 87 Para. 1 No. 1 BetrVG are only issues relating to the organization of the company and the behavior of employees in the company. 

Ultimately, the Labor Court Hamburg also denied an asserted right of co-determination pursuant to Sec. 87 Para. 1 No. 7 BetrVG, which stipulates a right of co-determination concerning health protection issues on the grounds that a concrete risk to the employees’ health was not recognizable.
  

​Conclusion: Not every AI implementation leads to a right of co-determination for the works council

​The decision shows that the works council's co-determination rights do not automatically apply when AI is introduced. If the AI software is not installed on the company's systems and the employees manage their accounts themselves, the use of AI is not subject to co-determination. The Hamburg Labor Court thus sets an important benchmark for future discussions on co-determination rights in the context of AI.​

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