Artificial intelligence (AI) as a supportive work tool for employees has now arrived in many companies. However, AI can also be used to support the employer or even replace the employer completely in individual areas. For example, automated instructions by AI to employees or the use of AI for hiring and dismissal decisions come to mind. The creation of job references via ChatGPT, for example, already works amazingly well.
The use of AI instead of the employer carries the risk that personal data of employees will be leaked. Unless the data processing by the AI is necessary for the performance of the employment relationship, i.e. no mitigating equally suitable means are available, the consent of the employees concerned to the data processing is required. However, for consent to be effective, the employee must be informed transparently about how personal data is collected, analysed and used.
Profiling through the use of AI in hiring and dismissal decisions carries the risk of discriminatory decisions or the entrenchment of discriminatory structures. It must be ensured that profiling algorithms are transparent, comprehensible and fair. The review and final decision should always remain with the employer. In companies with a works council, the co-determination rights of the works council must also be safeguarded (in particular sections 92 ff, 99, 102 f BetrVG).
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