Representation in the workplace: Technology

Virtual meetings and the use of messaging apps have often become the norm in workplaces, cloud-based HR solutions have continued to evolve, and new developments around artificial intelligence, advanced machine learning, the metaverse and augmented reality systems are anticipated to represent a new world of opportunity for businesses. 

As workplace technology evolves, there is a growing focus on the issues and risks businesses need to be aware of. One area of focus is the requirement to involve worker representatives when a company is considering the implementation of new or updated workplace technology. Such requirements can differ not only by jurisdiction, but also by the type of technology and the purpose of use. 

Following on from our Representation in the workplace: Essential guide for global businesses, in this briefing we explore some of the employee representation considerations when implementing or updating technology. 

 

Focus on: implementing or updating technology in Germany

In Germany, the employee representation landscape is dominated by Works Councils (groups of elected employees), which can be established in every local operation that employs at least five individuals. The Works Council has a number of specific and general rights, including the protection of employee rights and the supervision of the employer’s legal compliance. 

In relation to the implementation of new or updated technology, the Works Council has a wide range of rights, which vary depending on the nature of the exercise. Implementing, updating or adding new functionality to even the simplest of technologies, including email or other communication systems, can trigger at least some obligations towards the Works Council.

As a minimum, the Works Council has a general right to all information it requires in order to fulfil its duties regarding matters that may affect the employees, and must be consulted before a measure regarding the workforce is implemented. However, where an employer intends to introduce or update workplace technology that has the ability to monitor the behaviour or performance of the employees (including working time recording, which has recently become mandatory), the Works Council has a right of co-determination.

Co-determination means that the Works Council must be in agreement with the proposed measure and give its consent to the measure being implemented. This requires a process of information, consultation and, often, negotiation. The timescale and intensity of the process will depend on the complexity and impact of the measure, but as a minimum will include a process of providing information to the Works Council, regarding what the technology can potentially do, and what the company intends to use it for. Where the technology can collect and retain employee personal data, the Works Council will also be concerned to ensure that data privacy obligations are complied with, including understanding who within the company will have access to the data and what it will be used for.  

In light of the obligations towards Works Councils in Germany, it will be important for companies proposing to implement new or updated technologies to start the process of providing information and consulting with the Works Council in good time. Failure to do so can seriously impact the timescale and risk profile of implementation, as ultimately the Works Council can prevent the technology from being implemented through the use of injunctive relief. Consideration will need to be given to the process with the Works Council even before a final decision has been taken regarding which particular provider of the technology should be selected and certainly before any binding agreement is signed with that technology provider. 

 

The use of technology to monitor working time in Germany

Whether a Works Council has the right to initiate the introduction of technology within the workplace was an issue recently considered by the German Federal Labour Court (Bundesarbeitsgericht, BAG) in the context of electronic working time recording. Although in that particular case the BAG determined that there was no such right, as the company was already legally obliged to record working time (see our briefing: Recording working time: are your practices legally compliant? for further details), the decision highlights the considerable strength and scope of the powers of Works Councils in Germany, and their potential to initiate social matters impacting the workforce, including the introduction of new or updated technology.

The BAG decision confirmed the existing legal obligation to record working time, but there remains the question for each organisation in Germany of how that obligation is operated in practice, and exactly what information is recorded. Despite the legal obligation to record working time, those issues therefore remain matters to be co-determined in each company with any Works Council. 

 

Using technology to monitor working time, behaviour or performance 

As noted above, the implementation and use of technology to monitor working time, behaviour or performance will trigger the obligation in Germany to undertake a process of co-determination with the Works Council prior to that technology being implemented. Obligations towards employee representative bodies are similarly triggered for such exercises in other countries too.
For example in the Netherlands, where measures aimed at or suitable for monitoring or checking the attendance, behaviour or performance of workers will trigger the right of the Works Council to give its consent before the measure can be implemented. And in France, the Social and Economic Committee should be informed and consulted prior to the implementation of any technological means that allows the control of employees’ activities. More generally, the Social and Economic Committee should be informed and consulted on matters relating to the organisation, management and general running of the company, as well as on other important projects impacting employees, which could include the implementation of new or updated workplace technology solutions. 

 

Timelines and formalities for consultation – a global approach?

Timelines and formalities for consultation in different countries will often vary. Usually, such consultation must be carried out before a decision to implement the new technology is taken. Formal notifications may require original “wet signatures” and specific signatories or powers of attorney, which can impact the timing if not properly planned in advance. The interaction between any European Works Council, local Works Councils, unions or other employee representative bodies must also be considered and planned for.
Strategic decisions on the detail and timing of information and consultation can have a significant impact on the process too. Thought should be given to how much information should be provided to employees and representatives, whilst ensuring cross-border consistency. To ensure the buy-in of the employee representative body, any such body will not only need to understand how the use of the new technology adds value to the business, but also how the measure has been designed to ensure fairness, accessibility for the workforce and adherence to legal requirements.

Particularly for new technologies that are not yet common in workplaces, including new virtual platforms, more intensive consultation with worker representative bodies is likely to be required to ensure an effective process, particularly to address novel issues raised by the use of such technologies in the workplace. In particular, questions are likely to arise around the safeguards and processes for monitoring and enforcing behavioural and other standards where workers are not located in a physical workplace, and ensuring that requirements and limits around working time are adhered to. In addition, questions will arise around how to protect workers’ health and safety in virtual workspaces, and how to ensure data privacy obligations are met and confidentiality is maintained. 

Legal regulation of technology solutions

Employers embarking on projects to implement new or updated technology should ensure that any laws around the use of that technology are understood from the outset. This should include any additional requirements based on the particular use of the technology, for example where the technology could be used to monitor working time, behaviour or performance, and any requirements based on the particular type of technology. 

There is a raft of new and proposed laws and guidance around artificial intelligence and advanced machine learning across the globe. For example in the EU, a proposed new Artificial Intelligence Act aims to regulate AI applications, with a prohibition on unacceptable-risk AI systems and robust data governance provisions for high-risk AI systems. Such systems include those intended to be used in the workplace, including for recruitment, selection, monitoring or evaluating performance. As currently proposed, information and consultation with a view to reaching agreement must take place with employee representatives prior to putting into service or using an AI system in the workplace.

How we can help

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have significant experience of supporting employers to steer through the legal, regulatory and practical implications associated with the implementation of new technologies in the workplace. Our teams are also increasingly being asked to help businesses understand and shape their approach to their ethical responsibilities.

We also regularly carry out a programme of events, webinars and training courses designed to keep you up to date, including a series of courses across a number of jurisdictions on Working with the Works Council. 

See also our other materials in this series: Representation in the workplace: Essential guide for global businesses; Employee representation considerations when introducing or making changes to pensions and benefits;