AI and job transformation: Legal issues associated with changing job profiles

This blog analyses how AI is changing employees' job profiles and the legal issues in this regard.

The rapid development of AI is revolutionising numerous roles in the working world. AI systems are already automating repetitive tasks, improving decision-making processes and optimising operational procedures within companies. It is to be expected that the progressive integration of AI in various industries and individual operational procedures will have an even more profound impact on employees' roles in the future.

As a result of these developments, traditional roles are being redefined and additional qualifications are becoming necessary. During an existing employment relationship, the use of AI can also lead to significant changes in the employee's work owed under their employment contract, meaning that employers must check whether a change in role is even covered by their right to issue instructions.

This blog post examines the extent to which the influence of AI systems requires the employer to take individual contractual and collective measures with regard to the change in work owed in order to make it legally effective.

Specification of the work owed

The employer determines the details of the employee's work, including place, time and content (section 106 (1) sentence 1 German Trade, Commerce and Industry Regulation Act (GewO)), through its right to issue directives. This right may be restricted by provisions in the employment contract, law, collective bargaining agreements or works agreements. The employment contract generally restricts the employer's right to issue directives regarding the content of the work. A unilateral assignment of another role must therefore be within the legal limits. An effective mobility clause allows the employer to assign the employee to another equivalent role. Equivalence is based on the company's perception and social image (German Federal Labour Court, judgment of 30 August 1995 – 1 AZR 47/95). Criteria for this include the number of subordinate employees and decision-making powers. The decisive factor is an overall assessment of the circumstances in the individual case (Cologne Higher Labour Court, judgment of 11 December 2009 – 10 Sa 328/09).

Lack of equivalence due to the use of AI

If the use of AI leads to a traditional job profile being redefined during an ongoing employment relationship, the new role may lack equivalence, meaning that this change is no longer covered by the employer's right to issue instructions and directives. In this case, a change in work can be brought about by a mutually agreed amending agreement between the employer and employee. If the change in work fails to achieve equivalence under the employer's right to issue instructions and directives, and if an amicable solution cannot be reached either, the last resort is a dismissal notice pending a change in contract. However, it is also necessary for the effectiveness of such a dismissal notice pending a change in contract to be socially justified (see section 1 German Act against Unfair Dismissal (KSchG)).

The following examples illustrate how AI can transform the jobs of the future in this sense:

• Automation of repetitive tasks: 
  The main task of an administrator is to manually enter and check data. An AI can perform these tasks automatically without errors. This would significantly devalue the role of the administrator, as the core competences and responsibilities would no longer apply.
• Change in decision-making processes:
  In a production plant, AI-based software could take over the planning and control of production processes, thereby significantly reducing the decision-making powers of the production manager. This would lead to a change in the social image of the company and the perceived value of the job.
• Change in creative processes:
  In the advertising or marketing industry, AI could be used to create advertising texts and graphics. This would move the role of a creative director or designer away from active design to monitoring and fine-tuning the content created by the AI. This could be perceived by the public as a devaluation of the original creative efforts.

The impact AI has on traditional roles is multifaceted. For example, a change in the nature of the work can be qualitative in that the employer assigns the employee a different type of work using AI, which is either more or less demanding. However, it can also be quantitative, in that the use if AI significantly increases the volume of work.

Employers should therefore be sufficiently aware that an employee can also demand that their employer employ them in accordance with the duties agreed in their employment contract. After all, the employee can assert their specific employment claim from the employment contract in court. In this respect, the employment relationship is protected. This means that the use of AI could also be prevented directly if an overall assessment indicates that a role using AI is not equivalent.

Approval requirement for transfers

Irrespective of whether the change is permitted by the employer's right to issue directives, the employer must inform the works council of any personnel measures, including transfers, and obtain its approval (section 99 German Works Constitution Act (BetrVG)).

An employee is deemed to have been transferred if they are assigned to another work area that continues for more than one month or involves a substantial change in the conditions in which the work is to be performed (section 95 (3) German Works Constitution Act (BetrVG)).

If the use of AI creates a new area of activity or significantly changes the tasks the job involves, this may constitute a transfer in this sense. A different work area only exists if the changes caused by AI are significant, for example due to the extension or reduction of around 20 % of the original workload or the elimination and transfer of tasks by AI software. Indicators of significant changes are prolonged training periods or significant deviations from the original job description.

Early assessment of the impact of using AI on job profiles

The increasing use of AI makes it necessary to continuously review and adapt job profiles in order to meet the new requirements resulting from using AI. This means that employers should regularly evaluate how technological progress is affecting employees' tasks and abilities. Employers can then remain flexible and agile in order to reap the benefits of AI technologies in the workplace in a legally effective and efficient way.

To enable AI to be implemented in work processes quickly and smoothly, employers can take proactive measures to resolve conflicts if there is a lack of equivalent work. Employers can also offer further training and retraining measures to prepare employees for new requirements and increase their ability to quickly adapt their duties by mutual agreement.